Mungo Appah & Anor V. Costain (W.a.) Ltd. & Anor (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN. 

In this appeal from the judgment of Bakare, J., in Suit Nos. LD/635/69 and LD/636/69 and LD/636/69 (consolidated) delivered in the Lagos High Court on March 19, 1973 against the plaintiffs, the plaintiffs as passengers on Peugeot 403 Car No. LM 2983 sued the defendants as owner and driver respectively of tipper lorry No. LN 5029 for the personal injuries they suffered as a result of the collision between their two vehicles on the Lagos-Ibadan Road on February 24, 1968.

The 1st plaintiff’s writ was endorsed as follows:  “The plaintiff’s claim against the defendants jointly and severally is for the sum of £10,098 :13/- being special and general damages for personal injuries sustained by the plaintiff as a result of the gross negligence of the 2nd defendant when Motor car registration No. LN 5029 driven by the 2nd defendant in the course of his duty as a servant of the 1st defendant collided with Motor car registration No. LM 2983 in which the plaintiff was a passenger, at Ogunmakin Market, Lagos/Shagamu Road, on the 24th day of February, 1968. By reason of the said collision the plaintiff suffered personal injuries and was put to great pain, incurred expenses and suffered loss.   Particulars of injuries The plaintiff suffered severe Head Injuries which resulted in unconsciousness for two days. Extensive laceration of the upper lip and forehead. Laceration of right leg.

Particulars of Negligence of the 2nd Defendant (a) drove carelessly and without due care to other road users, (b) failed to obey traffic signals and was thereby in breach of his statutory duty, (c) failed to stop so as to avoid colliding with the vehicle in which the plaintiff was a passenger, (d) failed to keep the said motor car under proper control.   Particulars of Special Damages Cost of accommodation in Ibadan as in-patient and out-patient (Adeoyo Hospital, Teaching Hospital and Private Residence) …………………………………………………………………… £50 Cost of Air-ticket to Ibadan and back to Lagos as out-patient …………………………………………….. £35 Doctor’s Report …………………………………………………………………………………………………… £3: 3/- Cost of Air-ticket for Mrs. Appah (Ibadan and back to Lagos) …………………………….. £10: 10/- General Damages …………………………………………….. £10,000:-  £10,098 :13/- PAGE| 3 And the plaintiff claims the sum of £10,098 :13/-.” The 2nd plaintiff’s writ was similarly endorsed with a claim for £20,098 against the same defendants as special and general damages. Their respective Statements of Claim were in almost identical terms except that the 2nd plaintiff’s contained a few more detailed particulars of special damages.

The Statement of Defence of 1st and 2nd defendants is as follows:   “1. Save as hereinafter admitted, the 1st and 2nd defendants deny each and every allegation of fact contained in the plaintiff’s Statement of Claim as if each had been set out separately and denied seriatim.

2. The 1st and 2nd defendants deny paragraphs 1, 2, 3, 4 and 5 of the plaintiff’s Statement of Claim and put the plaintiff to strict proof of the averments therein made. 3. The defendants deny every allegation contained in the plaintiff’s particulars of negligence, injuries and special damages and put the plaintiff to strict proof thereof. 4. The defendants also deny that the 2nd defendant was guilty of the alleged negligence or was guilty of any of the acts alleged in the Statement of Claim.

5. The 1st defendant avers that although the 2nd defendant was employed as a driver to the 1st defendant, the act complained of was not done by the 2nd defendant in the course of his employment as such and was not within the scope of such employment, and was wholly unauthorised by the 1st defendant. 6. The defendants maintain that the driver of car No. LM 2983 was the person guilty of the negligence alleged in the Statement of Claim. 7. The defendants also aver in the alternative that the said driver of car No. LM 2983 was contributorily negligent. 8. The 2nd defendant states that no motor-vehicle was driven negligently by him at the material time and place.  9. The 2nd defendant also maintains that the injuries and damages complained of by the plaintiff were not caused by the negligence of the 2nd defendant but were caused by the negligence or bad driving of the driver of car No. LM 2983. 10.

The defendants aver that damage complained of by the plaintiff is too remote. 11. The defendants will contend at the trial that the claim is misconceived, frivolous, vexatious and should be dismissed with substantial cost against the plaintiff.” Pleadings were ordered and duly filed. Both actions were by an order of the court consolidated. The learned trial judge summarised the admitted facts thus: “The 1st plaintiff testified that he and three other passengers travelled on the 24/2/68 in the motor vehicle driven by one Douglas from Lagos on their way to Ibadan. At a Village called Ogunmakin, 20 miles to Ibadan the car was hit by a tipper lorry driven by the 2nd defendant.

The lorry was travelling in the opposite direction, i.e., from Ibadan towards Lagos. The witness first saw the tipper lorry 35 feet away. Suddenly, the lorry swerved right and hit the car in which the 1st plaintiff was travelling at a ‘T’ junction at the scene of the accident. In consequence of the collision the 1st plaintiff became unconscious and later found that he sustained injuries.    The 2nd plaintiff who was also a passenger in the car LM 2983 testified that he sat in the middle on the back seat. As the car was climbing a hill at a village twenty miles to Ibadan, he saw a tipper lorry in the opposite direction not more than 25 feet ahead. There was a road junction at the scene, tipper lorry turned into the road junction and there was a collision. He too became unconscious and sustained injuries.

The 1st plaintiff’s witness, Dr. Adeyemo, Consultant Surgeon, testified that he treated the plaintiff at the Adeoyo Hospital, Ibadan. He assessed the disability of the 1st plaintiff at 10 per cent permanent and that of the 2nd plaintiff at 35 per cent. The 3rd plaintiff’s witness, one Bashiru Emiabata, Principal Executive Engineer in the Federal Ministry of Works and Housing, who was in charge of the Lagos-Ibadan Road, gave expert evidence as follows: “The Trunk ‘A1’ is joined by the trunk B road from Abeokuta meeting at Ogunmakin. The two roads meet at a right angle, normally called a ‘T’ junction. Trunk ‘A1’ are principal roads while trunk B are feeder roads. There is a contour line of height 300 feet above ordinance datum which crosses the Trunk ‘A1’ Road at Ogunmakin Market.

This shows that there is change of slopes at this point.  There is a river very close to the Ogunmakin market. The river lies on the Ibadan side of the ‘T’ junction. The ‘T’ junction is at the crest of the change of slopes. The road from Ibadan to the ‘T’ junction must be steep from the evidence of the river near the junction on the Ibadan side. This limits the sight distance of drivers from Ibadan side approaching Ogunmakin junction. The slope from the Lagos side of the Trunk A1 is milder. The sight distance of drivers from Lagos side is better than those from Ibadan side”.   In Ex. A, the Consultant Surgeon who attended to the plaintiff wrote in his 1968 report as follows: “The plaintiff was admitted to the Adeoyo Hospital, Ibadan, on 24/2/68 unconscious. He remained unconscious for two days. The plaintiff had extensive laceration of the upper lip and forehead. He also had laceration of the right leg. I treated him.

The injuries have healed but there is a deformity of the upper lip which will remain permanently. In consequence of the severance of some injuries in the upper lip the 1st plaintiff is bound to suffer for life severe parasthesia pain. I assess the 1st plaintiff’s disability at 10 per cent permanent”.   In respect of the 2nd plaintiff, the surgeon testified thus: “The 2nd plaintiff was also admitted to the Adeoyo Hospital on 24/2/68. He had head injury with fracture of the skull. Contension of the brain resulting in unconsciousness of two days’ duration. Semi-conscious for another 7 days.  He also had laceration of the left leg. I assess his disability at 35 per cent”. The learned trial Judge said the evidence of P.W.3, the Road Engineer, affected his judgment, observing:

“Having regard to the state of the road at the scene, it would be unreasonable to expect the tipper lorry heavily loaded and ascending slowly a steep hill to slow down again before crossing into the junction road. A person familiar, as the driver of vehicle LM 2983 was, with the state of the road and who had seen the tipper lorry yards ahead on ascending and was on the crest of the slope, owed it a duty to slow down completely and make sure that no vehicle was turning into the trunk B road before continuing his journey. This, the driver of the plaintiff’s car failed to do.” He thereupon decided that the plaintiff’s driver was the only person who could have avoided the accident and that, since he had failed to do so, the plaintiff’s claims were dismissed.

From this judgment, the present appeal has been brought on nine grounds of appeal, the ninth of which was abandoned at the request of learned counsel for the appellants, who thereupon sought permission and was allowed to argue all the remaining eight grounds together. The gravamen of his complaint was that the evidence led before the trial Judge established that it was the 2nd defendant, the driver of the tipper lorry, that was negligent, not the plaintiff’s driver. The sketch plan of the accident (Ex. F) was totally ignored by the learned trial Judge, whereas it would have been obvious from the plan that it was the driver of the lorry that was clearly in the wrong when he turned into a feeder road so suddenly without having a clear view of the traffic coming down from the crest of the hill from the opposite direction. Learned counsel for the appellants, Mr. Shola Rhodes, submitted that the learned trial Judge misdirected himself both in law and on the facts in coming to the conclusion that the plaintiffs/appellants’ driver was negligent in that he had failed to stop and observe the road in crossing the main road in front of a feeder road.