Century Insurance Co Ltd v Northern Ireland Road Transport Board

Categories: EMPLOYMENT; Contract of service, Other Employment

Master and Servant Loan of servant Servant to obey all orders of third party and wear
prescribed uniform.

Master and Servant Course of employment Servant delivering petrol at garage Servant
throwing away lighted match after lighting cigarette.

A lorry belonging to the respondents and driven by one of their employees, was delivering petrol
in bulk from the Larne depot of H & Co to a garage in Belfast. While the petrol was flowing
from the lorry to the tank at the garage, the driver lit a cigarette and threw away the lighted
match. A fire was caused forthwith, and an explosion, which effected considerable damage,
resulted. It was admitted that the act of the lorry driver was negligent. The petrol was being
delivered under a standing agreement, one of the clauses of which provided that all the
respondents employees engaged in or about such delivery should accept and obey the orders of
H & Co. There followed a proviso that nothing contained in the clause should imply that such
employees were in any way the employees of H & Co. The appellants had insured the
respondents against liability to third parties, and in answer to claims based upon this policy they
contended (i) that at the material time the lorry driver was the servant of H & Co and not of the
respondents, and (ii) that the lorry drivers act of negligence was not done in the course of his
employment so as to make his master responsible:

Held (i) the respondents were in the position of independent contractors who had undertaken,
by the use of their own vehicles and the activities of their own servants, to effect the deliveries of
petrol, since the lorry driver was subject to the orders of H & Co only so far as was necessary to
enable the respondents to carry out their contract, and the terms of the contract, taken as a whole,
did not involve his transfer to the service of H & Co.

(ii) the negligent act of the lorry driver was done in the course of his employment by the
respondents. They would be liable for his negligence and, therefore, were entitled to claim from
the appellants under the terms of the policy.
 GUARDIAN ROYAL EXCHANGE ASSURANCE (GHANA) LTD. v. APPIAH [1984-86] 1 GLR 52-5

COURT OF APPEAL, ACCRA

FRANCOIS, MENSA BOISON AND ABBAN JJ.A.

Vicarious liabilityMaster and servantCourse of employmentO instructed in Accra to wash vehicl

direction on where and how job to be doneO taking vehicle to Nsawam and causing accidentWhether O ac
course of employmentWhether employer liable for O's negligence.

HEADNOTES

The respondent, A., brought an action for damages for injuries she sustained in a motor accident at Nsawam
wholly by the negligent driving of a servant of the appellants, who died in the accident. The court found, int
that at the time of the accident O was driving in the course of his employment and therefore found the appellants
in damages to A. They appealed against that finding on the ground that on the evidence, O on the day of the ac
had only limited authority to collect the vehicle from the garage in Accra, wash it and return it to the garage
since the accident occurred at Nsawam he must have been on a frolic of his own. The Court of Appeal found
was left to his discretion as to where and how the job was to be done.

Held, dismissing the appeal: where a plaintiff established that a servant was doing the job he was employed to
onus of rebutting the presumption that the servant was acting in the course of his employment and within the sc
his authority lay on the employer who sought to repudiate liability for any wrongful acts arising from the se
conduct. Since O was authorised by the appellants to take the car out and wash it, it made no difference t
appellants did not authorise and would not have authorised the place, means and manner he decided to do it and
be liable for any wrongful acts of O. Consequently, they were liable for the negligent driving of O. Goh Choon
Lee Kim Soo [1925] A.C. 550 at 554; Aitchison v. Page Motors Ltd. (1935) 52 T.L.R. 137 and dictum of Cousse
Ansah v. Boye and West and South African Mines Ltd (1956) 1 W.A.L.R. 219 applied.

NATURE OF PROCEEDINGS

APPEAL against a decision of the Circuit Court, Accra awarding damages to the plaintiff in a road traffic acc
The facts are sufficiently set out in the judgment.

COUNSEL

Aduama Osei for the appellants.

Nii Osah Mills for the respondent.

JUDGMENT OF MENSA BOISON J.A.

This appeal is within a narrow compass on the one issue as to whether or not the servant of the defendants-app
(hereinafter referred to as the appellants) was on the occasion of a traffic accident acting in the course
employment as a driver. It would be necessary to state just enough facts of the case to give understanding
arguments of counsel.

On 23 November 1974 the plaintiff-respondent (hereinafter referred to as the respondent) as a passenger, from
to Nsawam, on a Bedford commercial bus sustained serious bodily injuries when the said bus collided with
saloon car of the appellants' at the outskirts of Nsawam. The appellants' car was at the time travelling in the op
direction and was being driven by one Ofori Armah, a driver employee of the appellant company; bu
unfortunately was killed in the collision.

In due course, the respondent instituted this action at the Circuit Court, Accra against the appellant compa
damages for personal injuries. The trial came on before Mrs. Striggner-Scott (then a circuit judge) who on 31 O
1980 found for the respondent. She held that the late Ofori was negligent in his management and control
appellants' car on the occasion and that he was wholly to blame for the collision. Further, contrary to the grava
the defence, the learned circuit judge held that Ofori was on the occasion driving in the course of his employme
servant of the appellant company, and in consequence found the appellants liable in damages to the respondent.

Before us the finding of negligence has hardly been contested. But the one serious ground taken and argued wit
earnestness was thus directed at liability. It averred that the learned circuit judge erred in holding that Ofori was
occasion of the accident acting in the course of his employment. In substance the submission of learned coun
the appellants was that Ofori, on the day in question, had only limited instructions, namely to collect the Fiat ca
its garage, have it washed and return it to the garage in readiness for use on Sunday, 24 November 1974. He nev
any business of the company at Nsawam or thereabout, and that he must necessarily have been at Nsawa
purposes of his own, unconnected with the interests of the appellant, and in the course of which the collision occ
Consequently, learned counsel argued that the case of Aitchison v. Page [p.54] Motors Ltd. (1935) 52 T.L.R
relied on by the trial judge was inapplicable, and that the appellants ought not to be held responsible.

The foundation for the contention of the appellants purports to be the evidence of the defence at the trial. The F
to which Ofori was assigned as a company driver, was officially allocated to the company's chief accountan
Acheampong. The car as a rule was garaged at the home of this officer. At the time of these events, Mr. Acheam
who had gone abroad for a course, was expected back in Accra on 24 November 1974. In his absence the c
under the charge of Mrs. Acheampong, with instructions not to give the keys to Ofori, except on request fro
office.

The evidence of Mr. Cathline, the appellants' representative, was that on 20 November Mrs. Acheampong was n
of the husband's expected arrival, as per exhibit 1, as follows:

"AC/RCA.

20/11/74
Mrs. O. K. Acheampong

Accra.

Dear Madam,

This is to inform you officially that Mr Acheampong is returning on Sunday evening by flight No. GH703
arrives at 19.45 hours, i.e. 7.45 p.m.

Driver Ofori, has been instructed to send his car to the airport and perhaps you will join him.

With kind regards

Yours sincerely

(Sgd) A Cathline

(Company Secretary)."

This witness asserted that while the officer was out of the country the Fiat car was not expected to be used or tak
by Ofori. And he emphasised that for the arrival assignment, Ofori was to drive from Mr. Acheampong's
directly to the airport.

But Mrs. Acheampong's testimony was to the contrary, in that, except for the weekends, Ofori came to collect
every morning for the office and returned it in the evening. This she permitted, although she had no specific r
from the office. She said those were directions from the husband before he left the country. It was Ofori w
delivered the letter, exhibit 1, to her, and he had told her [p.55] that he was expected to get the car washed on Sa
morning, 23 November. On her insistence that she wanted a written note, Ofori came early on Saturday mornin
a note, which he alleged was from the office, authorising her to let him take out the car to have it washed. Al
she did not really believe that that note was from the office and would not read it, she relented and allowed O
take the car out. Indeed, it was her practice to meet the husband on such occasions and take him home in her
car; and she was going to do so this time, in spite of the invitation carried by exhibit 1. So she tried to persuade
in vain, not to bother about the office car nor come to the airport on the Sunday. But Ofori took his orders fr
office, and would not be deflected.

Now, as Mrs. Acheampong had refused to read the note presented to her by Ofori the contents were not known
nor could its instructions, if any, and its source of authority be given in evidence. That was a strange behaviour
part of Mrs. Acheampong, and the trial court was not impressed by the inconsistent and conflicting evidence gi
the appellants. It rejected their evidence as a belated attempt to deny having authorised Ofori to take out the c
day; a stance which the trial court considered to be inconsistent with their statement of defence. There, the app
had admitted in paragraph 4 that Ofori was to collect the car on 23 November 1974 and have it filled with p
Whether it was to wash or to fill the car with petrol, the material point here I think is whether Ofori had any au
to collect the car out. There was the clearest possible evidence from the appellants themselves that justifi
learned trial judge's finding that Ofori had authority to collect the car to have it washed.

In Ansah v. Boye and West and South African Mines Ltd (1956) 1 W.A.L.R. 219, where in similar circumstan
second defendant employer successfully resisted liability, Coussey P. in a concurring judgment cautioned at 226

"A master must not lightly be exonerated from liability. He selects his lorry driver and places him in cha
mechanism which can become the instrument of destruction in the control of an unskilled or negligent servant en
on the master's business; but the servant must be at the time on the master's business."

And the learned trial judge properly devoted much attention to the question whether Ofori was on the business
appellants when he became involved in the collision at Nsawam. In other words was Ofori acting within the sc
his authority. According to the finding Ofori was to take the car out and have it washed. Place and mode or m
and means of carrying out that assignment were not spelt out in the [p.56] evidence. Nor was there evidence
prohibition. Indeed when the appellants took it into their heads at the trial to deny authorisation, they lo
precluded themselves from giving any such evidence, as to show any limitation on how Ofori was to execute th
job. Consequently, such evidence as limiting Ofori's conduct and scope of work was conspicuous by its absence

I think in those circumstances the reasonable and probable inference was that Ofori was left to his discretion as
the job was to be done. And in that case the appellants could not talk of deviation or departure from the au
given to Ofori. Where a plaintiff establishes that a servant was doing the job he was employed to do, the o
rebutting the presumption that the servant was acting in the course of his employment and within the scope
authority lies on the employer who seeks to repudiate liability for any wrongful acts arising from the se
conduct. As it happened, the appellants may well complain of wrong exercise of discretion by Ofori. It may w
that the appellants did not expect him to have the job done outside Accra. Or that if Ofori had told them that he
do it 22 miles away at Nsawam, the appellants would not have allowed it. There is really no evidence whether
was washed at all. But it is conceivable that for some convenience Ofori chose to go that far say to the River De
get it done. But that is strictly irrelevant to the appellants' liability once Ofori had the authority, without fet
have the car washed.

The law was stated in the case of Goh Choon Seng v. Lee Kim Soo [1925] A.C. 550 at 554-555, P.C. that:

. . . where the servant is doing some work which he is appointed to do, but does it in a way which his master h
authorized and would not have authorized, had he known of it . . . the master is, nevertheless, responsible."

It is on the basis of this principle of law that the case of Aitchison v. Page Motors Ltd. (supra), relied upon
judgment of the trial court, seems to have been decided, and in my respectful view correctly.

The instant case, on the facts, is no less illustrative of the principle stated above. Ofori was appointed to have
taken out and washed. It makes no difference that the appellants did not authorise and would not have authoris
place, means and manner he decided to do it; the appellants are nonetheless liable for any wrongful acts of Of
follows, in my judgment that the appeal should be dismissed.

For her injuries the respondent was awarded 7,220 damages. That was in October 1980, when the ceil
jurisdiction of the circuit court in such actions was not in excess of N8,000. Currently the jurisdiction is enla
100,000 by the Court (Amendment) Law, [p.57] 1983 (P.N.D.C.L. 47). Besides, while the appeal was pend
hearing there has been a fall in the value of money in this country and elsewhere. These factors, coupled w
nature of the respondent's injuries as shown by the record, invoke some sympathy. But the respondent has not
appealed against quantum, and has consequently aired no complaint. The judgment debt and costs were paid int
as a condition for stay of execution. The result is that the sum of 7,000 now comes into the hands of the resp
drastically affected by inflationary trends. Circumstances, which could have been taken care of by an ord
payment of interest at the current rate from 31 October 1980 to the date of judgment. Alas! it is too late in the d
such consideration and the award of the court below stands.

JUDGMENT OF FRANCOIS J.A.

I agree.

JUDGMENT OF ABBAN J.A.

I also agree.

DECISION

Appeal dismissed.

J. A.A.
ANTWI AND ANOTHER v. RAMAN AND OTHERS [1992] 1 GLR 253-256

HIGH COURT, ACCRA

ARYEETEY J.

Vicarious liabilityMotor vehicleHire-purchasepurchaser and second defendant bank joint owners of ve

Purchaser having sole control and possession of vehicleAccidentPurchaser's driver negligentWhether de
bank vicariously liable.

HEADNOTES

The plaintiffs' bus was damaged when a bus driven negligently by the first defendant ran into it. The plaintiffs t
issued a writ of summons claiming general and special damages against the second and third defendants on the
that the first defendant was at all material times operating their bus in the normal course of duty as their serv
agent. Only the second defendant, the Social Security Bank Ltd., entered appearance and contended that as a
only financed the purchase of the bus by the third defendant and therefore the vehicle was registered in their join
as security for the loan. But that the third defendant had possession, full control and management of the bus
transport business to the exclusion of the bank and accordingly, they were not liable for the negligent driving of
defendant.

Held: there was no evidence that the Social Security Bank Ltd. which provided the purchase price for the vehic
beyond securing their financial interest by ensuring that they were made joint owners of the vehicle. Furthermo
was no evidence to establish that the bank in any way retained any control over the running of the vehicle or
say in the engagement of the first defendant as the driver of the vehicle. The bank remained the joint owner only
duration of the payment of the loan. Therefore the bank could not be held vicariously liable for the negligent dr
the first defendant who was the agent of the third defendant alone, who had possession and control over the v
Dictum of Apaloo J.A. (as he then was) in Fynn v. Badu [1971 ] 1 G.L.R. 80 at 83, C.A. applied.

NATURE OF PROCEEDINGS

ACTION for damages by the plaintiffs: against, the defendants jointly [p.254] and severally for the negligent dr
their agent and driver. The facts are sufficiently set out in the judgment.

JUDGMENT OF ARYEETEY J.

By their writ of summons the plaintiffs claim against the defendants jointly and severally:

"(i) General and special damages for serious damage caused to the plaintiffs' Mercedes Benz commercial bus
6456 when it was negligently run into at Accra New Town by the second and third defendants' vehicle No. A
then under the management and control of the first defendant who was at all material times operating in the
course of duty as the servant and agent of the second and third defendants.

(ii) Any other reliefs found due."

As it turned out only the second defendant, the Social Security Bank Ltd., entered appearance and filed their st
of defence. Even through the first and third defendants were served with the writ of summons through a sub
process they did not enter appearance. Therefore on 15 June 1989 the plaintiffs obtained interlocutory judgment
them in default. However, the assessment of damages was shelved until the hearing of the matter between the p
and the second defendant.

As between the plaintiffs and the second defendant the most relevant issues in my view are:

(i) whether the second and third defendants were the joint owners of Canter bus No. AK 7125;

(ii) whether the first defendant was or must be deemed to be in charge of the vehicle as the agent and servant of
second and third defendants or either of them; and

(iii) whether the second defendant was entitled to repudiate liability despite the fact that the vehicle is registe
insured in its name as well as that of the third defendant as the joint owners thereof.

The stand of the second defendant as presented in their statement of defence is that in 1980 the bank finan
purchase of bus No. AK 7125 by the third defendant who had possession, full control and its [p.255] managem
his transport business, to the exclusion of the second defendant. In line with that the first defendant was an agen
third defendant. The reason why the vehicle was registered in the joint names of the third defendant and
defendant was merely to provide security for the loan to the third defendant. In the case of Badu v. Fynn Hig
Sekondi, unreported Aboagye J. had held that where in a hire-purchase agreement the property in a bus remaine
vendor until the payment of the whole purchase price the vendor was vicariously liable for the negligent drivin
purchaser on the basis that although the purchaser was not a servant of the vendor the vehicle was owned by the
at the time of the accident and that it was being driven by the purchaser with the permission of the vendor, t
venture being the collection and payment of fares by the purchaser to the vendor until the cost of the vehicle w
paid and thereafter the purchaser was to have the vehicle by himself. However, on appeal before the Court of
reported as Fynn v. Badu [1971] 1 G.L.R. 80, C.A. it was held that in all cases of joint enterprise, joint posse
joint right to control has been the basis for liability. In reading the judgment of the Court of Appeal, Apaloo J.A
then was) made the following remarks at 83 of the report:

"On the trial judge's own finding, there has been a bailment of the lorry by the second defendant to the first defen
is not suggested that the second defendant retained any right of control over the vehicle. Such interest as he
merely financial, that is, to retrieve the balance of the purchase price. . .

It cannot be said on the facts that in driving the vehicle in these circumstances, the first defendant was in an
acting for the second defendant. It is plain that he was acting entirely for his own benefit and on his own acco
fact that the daily takings would have to be accounted for to the second defendant in payment of the purchase pr
not show that the car was driven partly for the purpose of the first and second defendants within the principle lai
in the Crosville Motor Services case [ [1953] 2 All E.R. 753 C.A.]

In the instant case, it did not appear as if the bank which provided the purchase price for the vehicle went
securing their financial interest which they did by ensuring that they were made joint owners of the vehicle.
there is no evidence whatsoever to establish that the Social Security Bank in any way retained any control o
running [p.256] of the vehicle or had any say in the engagement of the first defendant as the driver of the vehic
third defendant was to pay the loan granted to him for the purchase of the vehicle while the second defendant re
the joint owner only for the duration of the payment of the loan. I am therefore obliged to follow the decision
v. Badu (supra) and to hold that in the circumstances the second defendant cannot be held vicariously liable
negligent driving of the first defendant who was the agent of the third defendant alone who had possession and
over the vehicle.

By an ex parte application filed on 15 May 1989 the plaintiffs obtained an interlocutory judgment against the f
third defendants leaving the damages to be assessed after the trial of the matter between the plaintiffs and the
defendant. Since no hearing notice has been served on them either directly or by a substituted process, even
evidence was led on behalf of the plaintiffs respecting pecuniary damages, no judgment can be given against
this stage. For the reasons I have enumerated above the whole of the claim against the second defendant is dism
unmeritorious. The second defendant is awarded 25,000 costs.

DECISION

Plaintiffs' action against the second defendant dismissed.

M.C.N.-N.
 EWUDZIWA v. ATTORNEY-GENERAL [1982-83] GLR 625-639

HIGH COURT, ACCRA

19 NOVEMBER 1980

CECILIA KORANTENG-ADDOW J.

Road trafficNegligenceCollisionExcessive speeding per se no mark of negligenceNo speed limit impo

jeep on highwayAttributes of prudent driverJeep driven into stationary vehicle properly parked and lig
Presumption of negligence against driver of jeepNature of burden of proof on driverWhether driver negli
absence of evidence explaining accident.

Vicarious liabilityMaster and servantCourse of employmentWhen master liable for tortious acts of ser
Police constable, A, authorised only to drive superior officer within AccraA without authority of superior
driving to Cape Coast and taking fare-paying passengers on trip back to AccraWhether A driving within scope
employmentWhether Republic vicariously liable for injuries sustained by passenger in vehicle.
Vicarious liabilityMaster and servantCourse of employmentCourt's recommendation Human
considerationsPlaintiff maimed in motor accident negligently caused by police constable on a frolic of his ow
liability attaching to RepublicCourt recommending that Attorney-General advise government to pay dama
plaintiff on humanitarian grounds.

NegligenceVolenti non fit injuriaPleadingEssence of pleaWhether plea compatible with alternative pl

there is breach of duty but plaintiff admitting to breach.

HEADNOTES

The plaintiff, E, a middle-aged woman, kept poultry and did backyard gardening from which she earned a mo
income. In the early hours of 18 November 1974, she boarded a police jeep driven by a police constable, A, as
paying passenger at Cape Coast on a journey to Accra. She fell asleep on the way. The jeep subsequently ran
properly parked and lighted stationary vehicle on the road. E sustained very serious injuries as a result of the ac
which disabled her from carrying on her poultry and backyard gardening. She therefore brought an action agai
Attorney-General as a nominal defendant for damages for the negligent driving of A, on the ground that since
driving a service vehicle he should be taken to have been driving within the scope of his employment.

A was however not made a party to the suit. The defendant disclaimed liability. In support of the defence, ev
was led to establish that A had been assigned to drive a superior officer within Accra and had no authority to d
Cape Coast or take passengers for a fare. Consequently, the accident occurred when A was on a frolic of his ow
hence the defendant was not vicariously liable for A's tortious act. The court found on the evidence that the ac
was due to excessive speeding on the part of A. An issue which fell for determination, inter alia, was wheth
accident occurred when A was acting within the scope of his employment.

Held:

(1) excessive speed alone was not a mark of negligence. No speed limit was imposed on driving on the highway
on certain types of vehicles, and, in the instant case, there was no evidence that the jeep was [p.626] restricted
speed limit. However, a prudent driver would drive at a speed which enabled him in his particular circumstan
have effective control over the movement of his vehicle. Since the jeep was driven into a stationary vehicle pr
parked and lighted, the presumption was that the driver of the jeep was negligent, for in the ordinary course of th
driver would not run into obstacles in his way if he had a proper look-out and good control of the vehicle, an
would call for an explanation. The onus was on the defendant to disprove negligence by explaining why the driv
to run into the rear of the stationary vehicle. There was however, no evidence to explain the accident. Negligen
therefore established against the driver. Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613 and Baiden v. Ansah [1
G.L.R. 407 at p. 417, C.A. cited, Saoud Brothers v. Boateng [1964] G.L.R. 405, S.C. distinguished.

(2) A master was not liable for his servant's tort unless it fell within the course of the servant's employmen
wrong must be expressly or implicitly authorised by the master; or it must be an unauthorised manner of
something which was authorised or incidental to something which the servant was employed to do. In the instan
the evidence was plain and did not give rise to any other inference than that the driver was not doing what h
employed to do or authorised to do. The trip to Cape Coast was outside the scope of his employment. Neither
incidental to his work as a driver nor connected with it since on the evidence he was not to drive beyond
Furthermore, in permitting the plaintiff to board the vehicle, he acted outside the scope of his authority. H
therefore on a spree of his own. Consequently, the plaintiff could not recover against the defendant.

(3) Having regard to the fact that if the constable had not been employed as a policeman, he would not have had
to the vehicle and thereby caused the accident which had completely maimed the plaintiff, the court would st
recommend that the Attorney-General should on humanitarian grounds advise the government to pay the plai
least part of the amount which she would have been entitled to receive had her claim against the Attorney-G
been successful.

Per curiam. The plea of volenti non fit injuria is a denial that the defendant owed any duty of care to the pl
therefore a defendant should not be permitted to plead that there was a breach of duty, but the plaintiff admitted
breach. If the defendant owes no duty to the plaintiff, then there cannot be any breach of duty. Dictum of Asqui
Dann v. Hamilton (1939) 1 K.B. 509 at p. 512 cited.

JUDGMENT OF KORANTENG-ADDOW J.

On 18 November 1974, the plaintiff, a middle-aged woman, was waiting in the early hours of the morning by the
at Kotokuraba in Cape Coast for transport to convey her to Accra. A vehicle came along and she hailed it to s
was police jeep No. GP. 449. Before she boarded, she noticed that it was a police jeep, nevertheless she told the
she was going to Accra and demanded to know the fare. The driver charged her 2 for herself and her luggag
agreed and boarded the vehicle. The vehicle, police jeep No. GP. 449, was driven by Constable Kofi Asa
Anomabu the constable stopped and picked three other passengers.

The jeep was moving at great speed. The plaintiff admonished the driver against overspeeding but the driver to
he had been sent from Takoradi to Accra, implying that he was in a hurry to get to Accra. Sometimes he paid h
the admonition, and slowed down, but generally his speed was high. At Mankesim the plaintiff fell asleep. Th
thing she realised was that she was lying ill at Winneba Hospital, with serious injuries and in pain all over her
The police vehicle had been involved in an accident at about six miles from the Winneba Junction towards Accr
had multiple lacerations on the face, arms and right leg. There were also deep lacerations on the upper part of th
tibia with evulsion of the skin, and compound fracture of the right femur. At the time she gave evidence, [p.62
was still continuing her treatment at the Korle Bu Teaching Hospital. The court had to move to her bedside to
her evidence. Dr. Korsah's opinion of her condition at that stage was that the plaintiff had three inches shorten
the right leg and that even though he thought the plaintiff might be able to walk again, she would have a shorten
and a permanent stiff knee, and that that leg would only serve as a pillar of support and will only be function
very low degree. At the stage of her treatment, he assessed her incapacity at 55 per cent.

The plaintiff is a housewife who did poultry farming on a very moderate scale, and a lot of backyard gardening
result of this accident, she has had to abandon completely these hobbies from which she derived financial suppo
is now a very unhappy and an unhealthy person. She brings this action against the Attorney-General as a n
defendant representing the government, the employer of the driver in charge of the police jeep No. G.P. 44
driver himself was not made a party to the suit. This the plaintiff had a right to do since the liability of mast
servant is several and joint. Nevertheless, the plaintiff must establish the negligence of the driver, since the defe
liability is only vicarious.

The defendant denied the plaintiff's charge of negligence, but offered no explanation. The plaintiff herself was n
position to tell how the accident occurred; she is asking the court to hold that the circumstances of the case ar
that negligence must be inferred from the conduct of the driver.

The speed at which the jeep was moving was so fast that the plaintiff on a number of times had to warn the dr
reduce speed and drive with care. Excerpts from the station diary at Winneba dated 18 November 1974 and con
in a letter written by Mr. B. S. K. Kwakye, Assistant Commissioner of Police at the time to the Attorney-G
shows how the accident occurred.

This letter was tendered by the defendant with no objection from the plaintiff. According to the contents of this
exhibit 5, the driver of the jeep (Asare) was approaching a stationary truck No. WR. 2683 which was properly
and lighted on the nearside of the road facing the Accra direction. When he was about to overtake the truck, he
vehicle coming from the opposite direction. The time was about 5.45 a.m. To avoid a head-on collision, he appl
brakes but they failed and he ran into the offside of the stationary truck. The police jeep rebounded and lande
away on its offside on the road.

The vehicle examiner who inspected the jeep after the accident said it was totally damaged and was not roadw
His report on the damages as contained in exhibit D reads as follows:

"Case No. RMTO 147/74 TO: CERTMOTORS,

[p.629]

Licensing Authority Cape Coast

Winneba 11 November 1974

Motor: Jeep No. GP. 449

Please test the brakes and steering gear of the above vehicle and inform me if same are in working order an
damages.

(Sgd.) ? ? Inspt.,

LICENSING AUTHORITY.

Report

Vehicle was examined on 18 November 1974 and at the request of the police. The steering and braking system
damaged as a result of the accident.

Damages

Steel body right side panel ripped off and distorted. Driver's cab and cab roof panel distorted; front grille dam
Radiator damaged.

O/S and N/S headlights damaged: accumulator battery smashed; windscreen smashed; distributor head damage
and N/S front mudguards damaged; right hand side front road springs top leaf broken; front shock absorbers dam
front propeller-shaft bent; steering rack rod bent; chassis right hand side frame bent; cab doors damaged and det
right hand side front wheel brake hose damaged as a result of the accident; steering wheel damaged: Front b
right hand side portion dented and bent inward.

At the time of the examination vehicle was lying on its left hand side on the road.

(Sgd.) M.A. Aryee.

Senior Technical Officer

(Driving & Vehicle Exams.)

M.A. Aryee."

In his testimony in court, the vehicle examiner said he formed the opinion that the accident was due to exc
speed.

This is all the evidence there is on record of the accident. It will be remembered that the plaintiff was asleep, s
no recollection of what happened. But the extensive damage caused to the police jeep from the impact of the co
would seem to tell its own story. It suggests clearly that great force was involved. The only inference wh
deducible from this is that since the truck was stationary, and the jeep was moving, the jeep must have been mo
a great speed. Excessive speed alone is not a mark of negligence. It is true that no speed limit is imposed on
driving on the highway [p.630] except on certain types of vehicles. There is no evidence that the jeep in this ca
restricted in any way to any speed limit. However, I have always held the view, and I think it is a reasonable one
prudent driver will drive at a speed which enables him in his particular circumstances to have effective control o
movement of his vehicle. Since the police jeep was driven into a stationary vehicle which was properly park
lighted, the presumption is that the driver of the jeep was negligent. Even if he was driving at ten miles per hour
drove into a stationary vehicle, I think an accident in those circumstances would raise a presumption of negli
which would call for an explanation: see Baiden v. Ansah [1974] 2 G.L.R. 407 at p 417, C.A. and Mbadiwe v
(1954) 14 W.A.C.A. 613.

The onus is on the defendant to disprove negligence. There is no evidence to explain the accident. Miss Q
relying on Saoud Brothers v. Boateng [1964] G.L.R. 405, S.C., contended that the plaintiff gave details of h
accident occurred, but those details were not substantiated in evidence, so negligence is not proved. I think th
established facts cogently point to negligence on the part of the driver of the jeep. In the ordinary course of th
driver does not run into obstacles in his way if he has a proper look-out and good control of the vehicle
incumbent upon the defendant to explain why the driver had to run into the rear of the stationary vehicle. This
not done. The onus which shifted on the defendant has not therefore been discharged.

As I said earlier on, the defendant's liability can only be vicarious, and the driver must be proved to be acting
course of his employment at the time of this incident. The defendant's main defence to this claim is that the driv
on a frolic of his own. In paragraph 2 of the amended statement of defence it was averred:

"2. The defendant admits that G.P.C. No. 6960 Kofi Asare was at all material times an employee of the Ghana
Force and the driver in charge of police jeep No. GP. 449 but denies that at that time he was in control of the v
with the consent and knowledge of his employers as alleged in paragraph 2 of the statement of claim."

Then at paragraph 4 it was pleaded:

"4. In further answer to paragraphs 2, 3, 4 and 5 of the statement of claim the defendants aver that G.P.C. Kofi
was at all material times in charge of force vehicle No. G.P. 449 for his own private purpose, without any au
knowledge or consent of his employers and in complete violation of police regulations and discipline."

[p.631]

The plaintiff's case has been that since the driver was driving a service vehicle, the court should infer that h
driving within the scope of his employment. That, in my view, the plaintiff was entitled to do. Having establish
the vehicle belonged to the Police Force, the inference could be made that the driver was the agent or servant
owner. The burden is therefore on the owner to disprove that the driver was his agent or servant driving with
scope of his authority, or in the course of his employment. A master is not liable for his servant's tort unless
within the course of the servant's employment. The wrong must be expressly or impliedly authorised by the ma
it must be an unauthorised manner of doing something which is authorised or incidental to something whi
servant is employed to do: see Salmond on Torts. But it is a question of fact whether a servant is doing som
which he was employed to do: see Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705.

The defendant's case is that the driver, Constable Asare, was assigned to Assistant Commissioner of Police, Mr.
On 17 November 1974, Constable Asare drove Mr. Tetteh to church with the police jeep No. GP. 449. Mr. Tette
his personal car was in the workshop so he asked Asare to bring the police vehicle to convey him.

At one o'clock, Asare went back to the church at Adabraka Assemblies of God and took Mr. Tetteh to Osu R.
Tetteh was with a reverend minister on the vehicle and after he got down, he instructed the driver to conv
reverend minister to Adabraka and then return the vehicle to the service workshop. Mr. Tetteh expected As
collect him in the morning of 18 November 1974, but Asare never turned up. When Mr. Tetteh got to work
service workshop he gave instructions to find Asare, but he had a report that neither Asare nor the vehicle co
traced at the workshop.

The station diary kept at the service workshop on 17 November 1974, p. 155, column 35 shows the foll
recording: "No. 6960 TC/1 Kofi Asare i/c S/V No. GP. 449 reported and left for assistant commissioner of p
bungalow on duty." This is recorded against the time 8.30 a.m. At column 40 of the same, against the time 10.2
and same date, it is recorded that the constable reported his arrival from the assistant commissioner of p
bungalow. No more recording was made in respect of the constable or the vehicle. Mr. Tetteh said that senior
officers are allowed to use service vehicles for their personal use, but junior officers can only use them on instru
from superior officers, but all he authorised Asare to do after he dropped him, was to return the vehicle
workshop after dropping the reverend minister at Adabraka. The evidence on record is that Asare picked the p
at Cape Coast. In fact, he told the plaintiff he was returning from Takoradi to Accra. The crucial [p.632] issue on
the whole of this matter hinges is whether or not Asare was driving in the course of his employment when he to
plaintiff for a fare at Cape Coast.

I have heard very forceful and convincing argument from Miss Quartey that the facts of the case show clearly th
driver was not authorised to go to Takoradi nor take passengers. On the contrary, she maintained he was
instructions not to use the service vehicle to convey passengers. In the circumstances of this case, she submitt
the plaintiff was a trespasser and therefore not entitled to damages for the tort committed against her by Asa
support, she relied on Agogro v. Ago [1973] G.L.R. 45; Twine v. Bean's Express Ltd. [1946] 1 All E.R. 20
Conway v. George Wimpey & Co. Ltd. [1951] 2 K.B. 266, C.A. She argued further that the plaintiff consented
carried at her own risk.

Mr. Epton on the other hand argued that since it had not been recorded that the vehicle had returned after Mr.
returned from church, it should be presumed that the constable was still on duty. He argued further that in the a
of express prohibition forbidding a wrong, the defendant will not be exculpated if the driver did an unauthoris
He also relied on cases like Ilkiw v. Samuels [1963] 1 W.L.R. 991; Limpus v. London General Omnibus Co. (1
H & C. 526; London County Council v. Cattermoles (Garages) Ltd. [1953] 1 W.L.R. 997, Rose v. Plenty [1
W.L.R. 141 and Bernett v. Tugwell [1971] 2 Q.B. 267 and maintained that the police should have exhibited a w
notice on the vehicle before the defence of volenti non fit injuria would avail the defendants.

On the facts, it is firmly established that driver Asare was not authorised to go to Takoradi or Cape Coast o
passengers for fare. There is no controversy about that. The evidence is clear that driving the vehicle beyond Ac
the way to Cape Coast and conveying passengers for a fare were all acts which were not authorised by the mast
the controversy is whether the unauthorised acts were done while the driver was doing that which he was emplo
do. The presumption that the driver was on duty because there was no record in the station diary, and on whi
Epton relied, is not an unrebuttable presumption. The Assistant Commissioner of Police, Mr. Tetteh, explain
circumstances and from that evidence it was quite clear that the driver had specific instructions and these limi
driver's movement to within Accra. The driver had no instructions or permission to drive the vehicle to Cape
Even if he had permission so to do, in using the vehicle for his own private and personal benefit, the defendants
not be liable for a tort committed in the course of such personal venture from which the defendant would der
benefit: See Higbid v. R.C. Hamnett Ltd. (1932) 49 T.L.R. 104.

[p.633]

A master is not liable for the acts of his driver committed in the course of driving merely because he was emplo
drive. For the master to be liable, the act which gave cause for inquiry must be authorised by the master or done
course of the servant doing his normal work. The trip to Cape Coast and back was neither authorised, nor made
normal course of the driver's work. The evidence is plain and does not give room for any other inference. The
was not doing what he was employed to do or authorised to do. The trip to Takoradi was outside the scope
employment. Neither was it incidental to his work as a driver of the Assistant Commissioner of Police nor con
with it. I cannot therefore see how the plaintiff can recover against the defendant, while the driver was obvious
spree of his own when the accident occurred.

On the issue of volenti non fit injuria, the evidence upon which this submission was made is that the plaintiff
said she knew police vehicles are not for passengers and she would not have hailed it to stop if she had obse
before it stopped. She also said she had occasion to advise the driver to slow down yet she remained on the v
until the serious accident occurred. The plaintiff said she knew this, even though no notice was expressly exhib
the vehicle.

Nevertheless, such instructions given to the driver would not exonerate the defendant from liability if the ac
took place in the course of the driver's employment. This defence is put up alternatively to the defence th
government is not vicariously liable for the negligence of the driver whom the Attorney-General maintains wa
frolic of his own. In other words, the Attorney-General is saying that the driver was not driving in the course
work, but should the court find that he was, then his defence is that the plaintiff knew of the risk involved a
consented to the driver's carelessness. It is sufficient to say that this alternate defence was not pleaded.

It was merely mentioned in counsel for the defendant's address. The plea of volenti non fit injuria is a denial t
defendant owed any duty of care to the plaintiff, therefore a defendant should not be permitted no plead that the
breach of duty, but the plaintiff admitted to the breach. If the defendant owes no duty to the plaintiff, then there
be any breach of any duty. This point was alluded to by Asquith J. in Dann v. Hamilton [1939] 1 K.B. 509. At
he observed:

"As a matter of strict pleading it seems that the plea volenti is a denial of any duty, at all, and, therefore, of any
of duty and an admission of negligence cannot strictly be combined with the plea."

[p.634]

It is my view that the line of defence relied upon by the defendant does not permit him to take refuge under a p
volenti non fit injuria. I think this defence was raised in the last minute as a result of an admission by the plaint
she knew that police vehicles were not meant for use as passenger trucks. I do not think that knowledge negativ
wrongdoing on the part of the driver. However, it may be said that, as between the plaintiff and the defenda
plaintiff was a trespasser on the police jeep so the defendant cannot be held liable.

This in fact is another way of saying that the constable acted outside the scope of his employment in permitt
plaintiff to board the vehicle. If the driver had been sent in the course of his normal work to go to Takoradi and
forbidden to take passengers on the way, but in disobedience of these instructions he took passengers, the fact
was expressly forbidden to take passengers would not be a defence which would avail the defendant should an in
like this have occurred, unless the notice was expressly exhibited and the plaintiff's attention was drawn to it.

But what is the point in notifying a person of a matter of which he already has notice? Police jeeps as we have t
this country cannot be mistaken for private vehicles. I think the fact that the vehicle is a police vehicle is itself a
to the public that it is not a passenger vehicle. Upon the facts of this case, I find that the defendant is not liabl
though I think the plaintiff could successfully have sued the driver.

Damages

I will nevertheless assess her damages, should this be taken on appeal and the judgment is reversed. The claim c
of special and general damages. 60,000 is claimed as general damages and 9,643.50 as special damages.

General damages

The plaintiff received fairly serious injuries which were compounded by the nature of the treatment she received
Cape Coast Hospital. The injuries as recorded in the medical report issued by the eminent orthopaedic su
Professor K. G. Korsah, are as follows:
"(1) Multiple lacerations on the face, arms, and right leg.

(2) Deep lacerations on the upper part of the (R) tibia with evulsion of the skin.

(3) Compound fracture (R) femur.

(4) Pain over medial aspect on (L) clavicle"

The plaintiff was first admitted at the Winneba Hospital. Due to lack of adequate medical facilities in equ
and personnel she was transferred to the Cape Coast Hospital where she remained on [p.635] admission f
months. During this period, she was subjected to some operations but these failed to align the fractures. At the
the five months, Dr. Klimeoyic under whose care and treatment the plaintiff was, went on leave so the plaint
transferred to the Korle Bu Hospital and was admitted under the care of Dr. K. G. Korsah.

On admitting and examining her, Dr. Korsah discovered that the whole operation performed at Cape Coast H
had become infected. On opening up the wound, he further discovered that a metal plate had been inserted but
had not been properly fitted. This metal plate had six holes which had to be secured with screws. But only on
had the proper screw. The rest of the holes were fitted with wire loops which had been twisted round the bone.

The wires failed to hold the metal plate to the bone so the broken ends of the bone fell apart and the whole a
infected. It was full of puss when the wound was opened up. Treating the infection involved the plaintiff in grea
It was also discovered that certain segments of the femur were missing at the fracture site, presumably removed
first operation. The missing of these bone pieces had caused great shortening to the plaintiff's right leg. It is sho
three inches than the normal left leg.

After the infection had been brought under control, another operation was performed and a nail was inserted
fracture site. Later on, when she was taking physiotherapy treatment, the nail broke because it could not ta
normal weight. Another operation became necessary. A bone had to be removed from the iliac crest (top hip bon
grafted at the fracture site. In fact bone was removed from both sides of the iliac crest during the second
operations performed at Korle Bu Hospital.

The fate of the plaintiff vis-a-vis this injured leg still hangs in abeyance. Even though Dr. Korsah says she will b
to walk one day, he is certain that the leg cannot be bent at the knee. All the muscles from the knee up are se
scarred; it is all replaced with scars, so the plaintiff can never bend the left knee. She can only walk by swingin
knee. She is still going in and out of hospital for admission for long periods ranging from six months to twelve m
and over. This is the extent of the plaintiff's incapacity resulting from this accident. It is not an easy task to put
value on this state of incapacity, her pain and suffering, loss of amenities and her disfigurement.

Incapacity

Professor Korsah assessed her incapacity of the left leg at 55 per cent at the time he gave evidence. At that tim
plaintiff still carried a metal nail at the fracture site and this always poses a risk of [p.636] infection. This ri
doctor said, is eight per cent certain. If an infection sets in, an operation will have to be performed to put things
The risk of the infection is a matter of which consideration will have to be taken in assessing her damages now.
Every operation which necessitates the administration of general anaesthetics poses a risk to life. Then the condi
the leg itself will have to be considered. This was a very active woman, and an industrious one at that. Besides b
housewife, she kept a poultry farm at her backyard. She kept 1,000 to 1,500 birds at a time, and her net profit p
was about 5,400. She tendered photographs and newspaper articles on her poultry in respect of a competition s
won on backyard gardening. A picture of her handing over a crate of eggs to her daughter, and a maid holding
appears in the Ghanaian Times issue of 8 June 1970. The evidence admits no doubt that this woman was a
engaged in poultry farming.

With her state of incapacity, she cannot continue with this hobby which brought her substantial income. She sa
even though she could have engaged farm hands to do the actual work, with her condition she cannot supervise
cannot be a fruitful venture. I agree with her. Since this accident, this woman has been in and out of hospitals;
not in any condition to undertake such a venture. Poultry farming in this country is not an easy task.

Anyone with the least experience would appreciate the hard work involved in the venture. It involves m
arrangements for the day old chicks and for the feed. I have had the experience. It is not the type of work o
entrust to a farm hand and expect to make profit. Again, what fun and enjoyment would the plaintiff derive
hobby for which she would have to pay someone to do? None. Her loss therefore in respect of his poultry fa
should be considered in two respects: It means loss of earning to her, it also involves loss of amenities to he
poultry farming was a hobby to her, apart from the income it brought to her.

The plaintiff's state of incapacity has also greatly affected her in housewifery duties. She cannot perform her hou
chores; she cannot even attend to her own needs. She now employs an attendant, and housemaid to do the hous
She pays them 20 and 30 monthly, respectively. With the increase in the daily rate of labourers, and the rising
things, these wages will have to be increased from time to time. When her condition improves, as the doctor is h
that it will be better someday she may be able to do away with the personal attendant, but she may not be
cope with the household chores single-handed. It means that she should be able to have the means to engage so
to assist her in the housework. In assessing her damages, all these matters will have to be taken account of.

[p.637]

Her loss of amenities following this accident and the treatment she had is quite substantial. For all practical pu
she has lost the full use of that leg. She will never be able to do any sporting activity. A woman of her age is not
to indulge in any sport as such, nevertheless it is a great handicap that she cannot bend her left leg at the knee a
in case of emergency she cannot run even for dear life.

The multiplicity of operations preceding the nail insertions and bone grafting have left the plaintiff's left leg a
sight, the upper part of that leg is covered with scars. There are also scars on the face and right forearm, a
abdomen, and the donor site for the bone grafting. There is also three inches shortening of the left leg. For
balance, the doctor said the plaintiff will need special orthopaedic shoes which will be raised to the height
normal leg.

Considering all these matters, I have, with great difficulty, come to the conclusion that the plaintiff's losses sho
assessed as follows: Her incapacity which involves the left leg: the loss of one leg is assessed at 70 per cent inca
This was assessed at 55 per cent. For incapacity in this case, I would award 2,500. The loss of earning in
amounts to about 5,400 a year. There are a number of factors which would have operated to prevent the plaintif
continuing with the poultry, or caused her to reduce it to a smaller scale and thus caused a reduction in prof
plaintiff is 50 years; she might even disengage herself from the work as a result of old age. Considering the cert
and the uncertainties, I would fix her loss under this head at 10,000. For pain and suffering, I would award 3,0

For cost of hiring a housemaid at 20 per month, the cost for a year would be 240. Considering the rising
labour, and the possibility that when she improved in health, she may dispense with her services, I think the s
2,400 is adequate. For the hiring of a personal attendant, I would award 3,000.

For loss of amenities, I would award 1,500 and for disabilities, involving the shortening of the leg, cost of
orthopaedic shoes, and scars which would be completely covered by the plaintiff's dressing, I would award
The total sum awarded for general damages is 23,500.

Special Damages

The plaintiff claims medical expenses, transport expenses she incurred to enable her mother to visit her, tra
expenses incurred by her husband to visit her in hospital and cost of personal effects which she lost in the accide
loss of earning for three years between 1974 and 1976.

Firstly, the medical expenses: This includes medical fees, cost of drugs, transport charges paid for taxi fa
attending the Military [p.638] Hospital for physiotherapy treatment and cost of medical report.

All these were itemised in the statement of claim, but the figures given in evidence diverges from those pleaded
statement of claim. The plaintiff's explanation for the divergence is that she has become very forgetful sin
accident. She said she paid taxi fares from her residence at Labone Estate to the Korle Bu Hospital three times
week at 4 per trip, return being 8. This continued for over one year. Then for another year she paid 4 retu
fares for similar treatment at three times in the week to the Military Hospital. The amount claimed is 516. T
nothing to contradict this. It cannot be denied that she did undertake the journeys for the treatment, I would th
allow her the 516 for transport expenses.

When she was discharged from the Cape Coast Hospital, she paid 80.50. This is not disputed; it is supporte
receipt and I award it. The cost of clutches is 5.55 and I grant it. She said she spent 200 on transport for her m
to visit her in hospital. The plaintiff is an only child of her mother. The visits by her mother was no doubt neces
her speedy recovery. It is expenses which she can lawfully claim.

But I cannot say the same of the expenses incurred by her husband. It cannot be denied that the visit by the hu
was a therapy necessary for her recovery but I do not see how the plaintiff can claim for expenses which she h
incurred. The husband can claim his expenses, but I cannot allow such claim by the wife without any po
authority given by the husband to make this claim. I disallow the claim for expenses made by the husband. But I
the claim for the medical report which is 30. In all I grant 832.05 for medical expenses.

For loss of personal effects, the plaintiff gave account of things worth a total of 1,445. She said she lost those
accident. There was no serious challenge to this and I award it. The plaintiff also claims 3,600 as profit she
have made for three seasons between 1974 and 1976 on her poultry, at 1,800 per season. The evidence adm
doubt that this woman was engaged in poultry. She called a Mr. Thompson who supported her on this. To say t
made a profit of 1,800 a year on a poultry of 1,000 - 1,500 birds, is I think a modest claim. I allow her cl
3,600 for the three seasons. The total sum I award as special damages is 5,877.05. This is the damages wh
plaintiff has proved. Had the plaintiff been successful in her claim, this is the amount I would have awarded in
damages, and 23,500 in general damages.

Having regard to the fact that if the constable was not employed as a policeman, he would not have had access
vehicle and thereby caused this accident which has completely maimed this poor woman, I would st
recommend that the Attorney-General advises [p.639] the government to pay the plaintiff on humanitarian grou
least part of the amount which she would have been entitled to receive had her claim against the Attorney-G
been successful.

DECISION

Action dismissed.