MARY TUTU vs. ROBERT KWAME GYAMFI AND OTHER [2012]DLHC8195

Date	2012-05-03
Suit No.	SUIT NO. C8/60/10
Citation No.	[2012]DLHC8195

HIS LORDSHIP JUSTICE JACOB B. BOON

FELIX AMOAH FOR PLAINTIFF

NO REPRESENTATION FOR THE DEFENDANTS

[2012]DLHC8195
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													<main id="main" class="content" style="min-height: 60rem" >MARY TUTU<o:p></o:p>vs.<o:p></o:p>ROBERT KWAME GYAMFI AND OTHER<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO. C8/60/10&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 3RD MAY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FELIX AMOAH FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

NO REPRESENTATION 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:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The plaintiff was involved in an accident on
5th December, 2008 when she was travelling in first defendant’s Mercedez
Benz Bus, No. GT 8549 P, driven by the second defendant. <o:p></o:p><o:p>&nbsp;</o:p>According to her, she boarded the bus as a
fare-paying passenger at Kejetia, travelling to Jachie to attend the funeral of
a relative.<o:p></o:p><o:p>&nbsp;</o:p>She testified that in the course of the
journey, a young lady who was also a passenger, drew the attention of the
driver’s mate to an unusual noise at the back of the vehicle and impressed on
him to inform the driver. The mate said the noise was from a broken seat in the
vehicle and did not draw his master’s attention to the it. Plaintiff led
evidence that the young lady repeated her request, but the mate paid no heed.
She said the vehicle was at this stage being driven at top speed. All of a
sudden one of the back tyres burst, the driver lost of control and the vehicle
landed in a ditch. Plaintiff said she got injured in the accident. She
described the extent of her injuries as follows:<o:p></o:p><o:p>&nbsp;</o:p>“I had a
fracture of my collar bone; broken glasses entered my knee; a piece of metal
pierced my right hand at the joint near the elbow. I became unconscious and
gained consciousness at Pramso Hospital and later transferred to Komfo Anokye
Teaching Hospital”<o:p></o:p><o:p>&nbsp;</o:p>Consequently, she filed the instant writ
against the defendants, jointly and severally, claiming special and general
damages for the injuries she sustained in the accident which was allegedly
caused by the negligence of the second defendant as the servant of the first
defendant. She pleaded that the accident occurred when the second defendant
failed to exercise due care and attention in that he drove at top speed though
the tyres of the vehicle were defective or worn out.<o:p></o:p><o:p>&nbsp;</o:p>The writ of summons and accompanying
statement of claim were served on the defendant, but they failed to enter
appearance; they also filed no defence to the action. However, the plaintiff
was given the chance to prove her case for which reason she testified and
called, as her only witness, a medical officer at Komfo Anokye Teaching
Hospital who attended to her when she was admitted to that hospital. Two exhibits,
the Police accident and the final medical reports were also tendered in
evidence on her behalf as exhibits ‘A’ and ‘B’ respectively.<o:p></o:p>The Testing Officer’s report incorporated in
exhibit ‘A’ indicated that prior to the accident, the brakes, steering and
electrical system of the vehicle were in good working condition. Nothing was
said of the tyres which were allegedly defective or worn out. However, the
brief facts of the cause of the accident also contained in exhibit ‘A’ said one
of the back tyres got burst and the vehicle veered of the road and
summersaulted. In the usual course of things, a commercial vehicle loaded with
passengers will not veer off the road and summersault if proper care and
attention are implored in managing it. In the absence of any explanation from
the second defendant in particular, as to the cause of the accident, it is
reasonable to presume that it arose from want of reasonable care. Second
defendant owed a duty to the passengers in the vehicle and other road users he
may encounter in the course of the journey to exercise due care so as to avoid
any accident as that in which the plaintiff got injured. As that duty was
breached resulting in the accident in which the plaintiff got injured, she
could successfully mount the action against the defendants, the first defendant
as employer of the second defendant who was acting in the course of his
employment for it is a rule that an employer, though guilty of no fault himself,
is liable for damage done by the fault or negligence of his servant acting in
the course of his employment: see dictum of Lord
Reid in Stavely Iron Co. Ltd. v Jenes (1956) Ac 627; (1956) 2WLR 479.<o:p></o:p><o:p>&nbsp;</o:p>As stated, the plaintiff, who was aged
seventy-one at the time of the accident, claimed both special and general
damages. Regarding special damages, the rule is that they must be pleaded,
particularized and proved at the trial otherwise they cannot be granted: see In
re Banini (an infant) v Asare (1992) IGLR
353. In Kubi and Others v Dali
(1984-1986) 2GLR 501, CA at 505 per Abban JA, as he then was, said: “…special
damages as in the sense of a monetary loss must be pleaded and particularised
and then proved by admissible evidence. Otherwise it cannot be recovered.”
Also, in Ghana Highway Authority v Mensah
(1999-2000) 2GLR</main>