YAA AGYAPOMAA vs. ANDREWS KOFI KUNDANI [2013]DLHC8264

Date	2013-02-20
Suit No.	SUIT NO. C8/126/07
Citation No.	[2013]DLHC8264

HIS LORDSHIP MR. JACOB B. BOON

F.C. KHARSA FOR PLAINTIFF

[2013]DLHC8264
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													<main id="main" class="content" style="min-height: 60rem" >YAA AGYAPOMAA<o:p></o:p>vs.<o:p></o:p>ANDREWS KOFI KUNDANI<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;
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SUIT
NO. C8/126/07&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:
20TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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F.C.
KHARSA FOR PLAINTIFF&nbsp; <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;
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HIS LORDSHIP MR. JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiff herein, a farmer of forty-nine years old, filed the
instant writ against the defendant as owner of Nissan Urvan bus with
registration number GT 5524 N. She asserted that on or about the 29th
day, May 2004, she was travelling on board defendant’s urvan bus as a passenger
on Essienimpong-Ejisu motor road towards Ejisu direction when defendant’s
driver who was the in charge of the &nbsp;urvan bus, in the normal course of his
employment with the defendant, so negligently drove, managed and controlled the
vehicle that it veered off the road and ended in a gutter. The plaintiff
asserted she suffered serious injuries in the accident and can no longer carry
on her farming activities. She therefore instituted this action claiming
general and special damages against the defendant as owner of the urvan bus.
Defendant entered appearance to the action, but failed to file a defence. He
also failed and/or refused to appear at the hearing though served by
substitution.<o:p></o:p><o:p>&nbsp;</o:p>In her testimony, plaintiff led evidence that the accident was as a
result of excessive speeding of the urvan bus. She said at a point in the
course of the journey, her colleague passengers admonish the driver over the
speed to the extent that they threatened to alight if he did not drive at a
reasonable speed. She said it was after this that the driver lost control of
the vehicle and it landed in a gutter at her side; that her left hand got
trapped under a seat in the vehicle and she was the last passenger to be
assisted to come out of the vehicle.<o:p></o:p><o:p>&nbsp;</o:p>According to her, when she was rescued, she realised her trapped left hand
had fractured at several parts. She said she was rushed to a hospital at Kwaso,
but was transferred to Komfo Anokye Teaching Hospital in Kumasi where the hand
was operated upon. She said the hand was placed in a machine and she was detained
in the theatre for a week before she was transferred to a ward; that she spent
a total of three months, and two weeks before she was discharged, but she
visited a hospital at Kwaso, treated and dressed her sores as they were not
healed before she left Komfo Anokye Teaching Hospital. At the trial, she
tendered a medical report prepared by Komfo Anokye Teaching Hospital which
showed that she has developed claw fingers of the left hand due to nerve
injuries. It also indicated she cannot make a fist with the left hand fingers,
and cannot use that hand to hold anything. As at the time the report was
prepared, the left hand was completely useless and the temporal disability was
assessed at one hundred percent (100%). Permanent disability is however
assessed at fifty percent (50%). It is for this disability that she said she
could no longer carry on her farming activities which was her only source of
livelihood. She said she was an active member of a musical group and she played
one of the instruments used by the group; and according to her because of her
badly deformed hand she cannot do that now and has therefore lost a great past
time. It is also her case that she still suffers pain in that &nbsp;hand, and a photograph of it tendered at the
trial shows that it is mangled and appears horrifying.<o:p></o:p>Is the defendant liable in negligence? Plaintiff’s evidence indicated
the urvan bus was driven by a person who did so in the course of his employment
as driver of the vehicle owned by the defendant. According to her the driver
drove at top speed and ignored the pleas of her fellow passengers to drive at
reasonable speed. She said because of the unreasonable speed at which the
vehicle was driven, the driver lost control and it landed in a gutter at her
side resulting in the injuries she suffered. In the normal course of things, a
vehicle under the control of a driver will not veer off the road into a gutter
if it is properly managed. The mere fact of the accident in the circumstances
in which it occurred is prima facie evidence of negligence on the part of
defendant’s driver who was in control of it. In such a situation the burden is
on the person in charge of the vehicle at the time of the accident to explain
and show cause that the accident occurred without fault on his part. The maxim
res ipsa loquitur relied on by the plaintiff is applicable in this case. In
Ghana Highway Authority v Mensah (1999-2000) 2GLR 237 at 239, the principle was
explained in holding (3) as follows:<o:p></o:p><o:p>&nbsp;</o:p>“(3) Two main conditions had
to be met to entitle a plaintiff to rely on the maxim res ipso loquitur which
meant that an inference of negligence was raised against the defendant by
reason of the happening of certain events. First, the thing causing the damage
had to be under control of the defendant or his servant and s</main>