GYASI vs. STATE GOLD MINING CORPORATION AND ANOTHER [1979]DLHC1064

Date	1979-07-19
Suit No.
Citation No.	[1979]DLHC1064

OWUSU-ADDO J.

J. C. KHARSA FOR THE PLAINTIFF.

J. B. O. POBEE FOR THE FIRST DEFENDANTS.

[1979]DLHC1064
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													<main id="main" class="content" style="min-height: 60rem" >GYASI <o:p></o:p>vs. <o:p></o:p>STATE GOLD MINING CORPORATION AND ANOTHER<o:p></o:p>[HIGH COURT, KUMASI] <o:p></o:p>[1978] GLR 456<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:
19 JULY 1979<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. C. KHARSA 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 1.0pt 0in">

OWUSU-ADDO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OWUSU-ADDO J.<o:p></o:p>The
plaintiff is claiming unspecified general damages and ¢66 special damages
against the defendants jointly and severally for the injuries sustained by him
as a result of a motor accident. On 21 October 1973 the plaintiff and his
second witness, Francis Mintah, rode in vehicle No. GJ 4818, belonging to their
employers the first defendants, from Konongo to Obenemase. They were being
driven by one Kingsley Tawiah, also, an employee of the first defendants. The
had travelled to Obenemase in the course of their duty and were returning to
Konongo when the accident occurred. How it happened was this: Whilst
negotiating a sharp curve, Tawiah deviated from his proper lane into the lane
of vehicle No. GJ 4064 approaching from the opposite direction, and thereby
caused a collision of both vehicles. The plaintiff sustained serious injuries
resulting in the amputation of his right arm. The second defendant is the owner
of the vehicle No. GJ 4064 which was at the time of the accident in charge of
his undisclosed servant or agent.<o:p></o:p><o:p>&nbsp;</o:p>Perhaps,
unsure which of the drivers was solely to blame for the accident, the
plaintiff’s action is against the owners of both vehicles, who acting by
different solicitors, filed statements of defence in which they denied
liability for negligence and blamed each other’s driver for the accident. In
their statement of defence filed on 1 April 1976, the first defendants averred
in paragraph (6):<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">“(6) If,
which is denied, Kingsley Tawiah was negligent, the first defendants say that
the plaintiff had failed to take reasonable care for his own safety: the
plaintiff had the control of vehicle No. GJ 4814 and had allowed, permitted or
acquiesced in the manner in which Kingsley Tawiah drove on that day.”<o:p></o:p><o:p>&nbsp;</o:p>The
second defendant not only denied liability but blamed the accident on the first
defendant’s driver, Kingsley Tawiah. He had this to say in paragraphs (4) and
(5) of his statement of defence:<o:p></o:p>“(4)
Further to these paragraphs the second defendant says that at all times
material to this case his driver drove with due care and attention; rather it
was the first defendant’s driver and agent who drove speedily and without due
care and attention thereby causing damage to it. (5) The second defendant said
that the State Insurance Corporation, insurers of the first defendant on being
informed of the accident, conducted a private investigation into the
circumstances leading to the accident and they have on behalf of the first
defendants and with their consent admitted liability and they proceeded to pay
full value of the second defendants’ vehicle that was negligently damaged by
the first defendants.”<o:p></o:p><o:p>&nbsp;</o:p>It is
significant to note that the plaintiffs’ reply was restricted to the first
defendants’ statement of defence only.<o:p></o:p><o:p>&nbsp;</o:p>The first
issue is whether on the pleadings and evidence the first defendants are
entitled to avail themselves of this kind of defence, namely, volenti non fit
injuria. It must be pointed out that no evidence was given either by or on
behalf of both defendants. But by their pleadings and the defence established
through cross-examination, the first defendants are contending that the
plaintiff is not entitled to his claim because he had allowed, permitted or
acquiesced in the manner in which Kingsley Tawiah had driven on that day. I
shall later discuss this principle in detail but I would say at this stage that
the evidence of the plaintiff and his third witness failed to prove not even
one of the particulars of negligence averred against the second defendant’s
servant or agent. Without much ado, I shall dismiss the plaintiff ‘s claim
against the second defendant and enter judgment aga</main>