KOTIAWUSU vs. GOKA [1992]DLCA4240

Date	1992-02-06
Suit No.
Citation No.	[1992]DLCA4240

AMUAH JA

ADJABENG JA

AMMAH J

E D KOM FOR THE APPELLANT.

S O K OTENG FOR THE RESPONDENT.

[1992]DLCA4240
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													<main id="main" class="content" style="min-height: 60rem" >KOTIAWUSU<o:p></o:p>vs.<o:p></o:p>GOKA<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

[1993 - 4] 1 GBR 358 - 365 SC&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;DATE: 6 FEBRUARY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E
D KOM FOR THE APPELLANT.<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">

S
O K OTENG FOR THE RESPONDENT.<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">

AMUAH
JA, ADJABENG JA, AMMAH J<o:p></o:p>

</div>AMMAH
J. This is an appeal from the judgment of the High Court, Accra dated 26 July
1985. The plaintiff’s claim against the defendant was for ¢200,000 damages for
negligent driving of Peugeot 504 saloon car No GZA 8230 by the defendant herein
along the Anfoega-Dzana-Sovie motor road on 4 July 1981. At the time material
to this case the plaintiff was an employee of the Ghana National Trading
Corporation, Accra. The defendant owned Peugeot 504 saloon car No GZA 8230
which he was driving at the time when the accident which gave rise to this
action happened, about 7.30 p.m. along the Anfoega-Dzana-Sovie motor road.<o:p></o:p>The
parties were travelling from Accra to their hometown at Anfoega-Dzana to attend
the defendant’s father’s funeral. The plaintiff was sitting by the defendant
when somewhere between Kpandu and Anfoega-Dzana the accident happened. The
plaintiff received serious injuries to his right arm which resulted in its
amputation. He thereafter took this action. He had judgment and was awarded
general and special damages with costs.<o:p></o:p>Being
aggrieved by and dissatisfied with the judgment, the defendant has appealed to
this court on the following grounds:<o:p></o:p>(a)
The judgment is against the weight of evidence.<o:p></o:p>(b)
The learned trial judge wrongly exercised his discretion in awarding damages
which are excessive in the circumstances.<o:p></o:p>In
this court the defendant-appellant was granted leave to argue the following
additional grounds of appeal:<o:p></o:p>“(1) The learned trial judge failed to
consider the issue of contributory negligence pleaded in paragraphs 4, 6 and 7
of the statement of defence; if he did, the judgment would have been otherwise.<o:p></o:p>(2) The trial judge failed to consider
exhibit B which was part of the plaintiff’s case.<o:p></o:p>(3) In the absence of road measurements
by the police the trial judge erred in holding that the road was wide enough to
take both vehicles.”<o:p></o:p>In
view of the submissions made by learned counsel for the defendant-appellant it
is necessary to refer to the particulars of negligence pleaded as follows in
paragraph 6 of the statement of claim:<o:p></o:p>“(A) Failing to keep a proper look out
or any look out at all.<o:p></o:p>(B) Driving at excessive speed.<o:p></o:p>(C) Failing to stop to allow oncoming
vehicle in its proper lane to pass when defendant’s lane was blocked by a
fallen tree. This again was due to the excessiveness of the speed at which the
defendant was driving at the material time.<o:p></o:p>(D) Failing to brake, swerve or
otherwise to so control the said vehicle as to avoid a big fallen tree lying
across the defendant’s lane but which had been cut into a stump.”<o:p></o:p>Learned
counsel for the defendant-appellant referred to the particulars of negligence
as pleaded and the police report, exhibit B tendered by the plaintiff, and
submitted that there was a conflict between the evidence led and the pleadings
referred to and the plaintiff’s case ought to have been dismissed. Learned
counsel for the plaintiff-respondent held a contrary view.<o:p></o:p>The
evidence shows that before the accident the defendant saw an oncoming
articulator truck. According to the plaintiff, the defendant nearly drove into
the oncoming vehicle. He therefore, swerved and went off the road on the
near-side and ran into a tree which had been cut with a portion protruding into
the edge of the road. He realised his right arm was out and hanging. He held it
up with his left hand and asked the defendant to stop. He did so and came to
his side. There was no general damage to the car. However, the rear side door
and glasses and the door mudwings were grazed, buckled and broken. The back
door and glass were however broken as per exhibit B. The right tyres of the car
went off the road but the left tyres remained on the road. The plaintiff gave
the impression that the end of the tree which had been cut entered the car and
injured his right arm. This is because the glass of the right front door where
he was sitting had been rolled down.<o:p></o:p>The
plaintiff stated in evidence that he did not put his arm through the door of
the car and the defendant never asked him not to put his hand on the door of
the car.<o:p></o:p>The
defendant’s evidence on this aspect of the case was this:<o:p></o:p>“When I got there, I saw the
plaintiff’s right hand hanging over the back door inside the vehicle. The hand
had been hit and had been flung around the door post behind the plaintiff, the
glass in the back door broken and the hand was hanging inside the back of the
car through the broken door glass.”<o:p></o:p>The
nature of the severe injury to the plaintiff’s right arm which was alm</main>