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

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

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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.

He insisted that the duty was rather on the lorry driver to do this. He finally submitted that the injuries suffered by the appellants were not too remote a consequence of the respondents’ driver’s negligence which caused those injuries in the course of the driver’s employment by the first defendant/respondent. He referred to Liesbosch Dredger (Owners) v. S.S. Edison (Owners) (1933) A.C. 449, at p. 459.   Mr. Shitta-Bey, learned counsel for the respondents, contended that the learned trial Judges was right and that the plaintiffs/appellants’ driver must have been driving at such an excessive speed as to be unable to stop before the impact with the tipper lorry. He submitted that, even if the tipper lorry could be regarded as constituting an obstruction on the highway at the point of impact, the appellant’s driver should, on the authority of Harvey v. Road Haulage Executive (1952) 1 K.B. 120, still be held responsible for the collision. We think, however, that the facts of this case are so different from those of the present case that it is unnecessary to discuss them further.

It is, however, interesting to note that the issue of contributory negligence was considered in that case, whereas the learned trial Judge in the present case did not even say a word about the matter despite the fact that the defendants/respondents pleaded it in the alternative in their Statement of Defence and hinted at it in their evidence without making any serious issue of it.   We are of the opinion that the learned trial Judge was in error when he said: “I find that the plaintiffs’ driver was the only person who could have avoided the accident”. He was here referring to “the last opportunity test” in actions of negligence which Lord Denning said was obsolete since the (English) Law Reform (Contributory Negligence) Act, 1945: See Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2 K.B. 291, p.322-4. We agree that the learned trial Judge’s determination of liability is wrong when he said: “It was the duty of the driver of car LM 2983 to slow down and make sure that no vehicle was crossing into the trunk Broad.”

The so-called “last opportunity test” in actions of negligence which he seems to have applied is obsolete in our law since the Civil Liability (Miscellaneous Provisions) Act, 1961, Section 11 of which deals with liability in cases of contributory negligence where this is established. The last opportunity test, as commonly regarded as typified by British Columbia Electric Railway v. Loach (1916) A.C. 719, was, however, not followed in Swadling v. Cooper (1931) A.C. 1 which illustrates the rule to be applied in cases of dilemma created for one person by negligence of another. This is sometimes known as the Rule in The Bywell Castle (1816) 1 Starkce 493 where, because of the negligence of the defendant, a coach while descending a slope became so unmanageable that the plaintiff, afraid that the coach would over-turn, jumped off and thereby suffered injury. It was held that the plaintiff was entitled to recover.

In Swadling v. Cooper (Supra), a decision of the House of Lords, the appellant, while driving his motor car about 30 m.p.h. along a major road, approached a point in the road at which it was crossed by a side road, when a motor cyclist came into the main road from the side road without warning and there was a collision between the motor car and the motor bicycle in which the cyclist died. The appellant applied his brakes but failed to avoid the collision, as there was not enough time for him to do so. The deceased man’s widow brought an action under the Fatal Accidents Act, 1846, against the appellant, and the trial Judge held that the appellant was not liable when the jury returned a verdict to that effect after he had directed them that the question was: “Whose negligence was it that substantially caused the accident?”

The Court of Appeal ordered a new trial, but, on a further appeal the House of Lords reversed the Court of Appeal and restored the original judgment of Humphries, J., in the lower court. Viscount Hailsham observed at pp. 8 and 9, ibid:   “If it is established from his own evidence, or by evidence adduced on behalf of the defendant, that the plaintiff could have avoided the collision by the exercise of reasonable care, then the plaintiff fails, because his injury is due to his own negligence in failing to take reasonable care.

If, although the plaintiff was negligent, the defendant could have avoided the collision by the exercise of reasonable care, then it is the defendant’s failure to take that reasonable care to which the resulting damage is due and the plaintiff is entitled to recover. Mere failure to avoid the collision by taking some extra-ordinary precaution does not in itself constitute negligence: the plaintiff has no right of complaint if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.”

It will be seen that the facts in the Swadling Case are very similar to those of the present case and that it makes little difference whether the substantially negligent party was coming out of a side road or was turning into it when the collision occurred. In the instant case, the driver of a heavily loaded tipper lorry climbing a steep slope without warning and when he was unable to have a view of on-coming traffic from the opposite direction must be held responsible for the resultant collision when the plaintiffs’ driver was at the material time driving along the main road at no more than the 30 m.p.h. fixed by the road sign for that particular area of the road.

We must not forget that, at the material time, driving was on the left and that the lorry driver was swerving from the right side of the main road into the side road across the path of the on-coming Peugeot car driven by the plaintiffs’ driver.   The plaintiffs’ driver may have been negligent, but it was the lorry driver who substantially caused the accident in an emergency created by his negligence alone. We are, accordingly, of the view that the appellants are entitled to succeed in this appeal. Having held the defendants liable, we shall now proceed to consider the quantum of damages to which each plaintiff is entitled.

Since the trial Judge dismissed their claims, we think we are in at least a good position as he would be to assess the damages on the basis of the doctor’s report which describes their physical and mental injuries and estimates these at 10 per cent permanent in the case of the first plaintiff and at 35 per cent permanent in the case of the second plaintiff. Considering that both are youngmen in about their fourth year of secondary school and that their future has been permanently affected by their respective injuries to varying extents, we think that the first plaintiff/appellant is entitled to general damages of N5,000 and that the second plaintiff/appellant whose injuries were more grievous should receive N15,000 as general damages. We have taken into account the fact that the plaintiffs had during the course of the trial of their action in the court below abandoned their claims for special damages on the ground that the necessary documentary evidence might be difficult to procure.   The appeal, therefore, succeeds and is allowed.

The judgment of Bakare, J., in the consolidated Suit Nos. LD/635/69 and LD/636/69 delivered in the Lagos High Court on March 19, 1973, including the order as to cost, is hereby set aside. We make the following orders: (a) That the 1st appellant be and is hereby awarded general damages of N5,000 against the defendants for their negligence which resulted in the collision which caused the personal injuries;

(b) That the 2nd appellant be and is hereby awarded general damages of N15,000 against the defendants for the same reason as in (a) above; (c) That any costs that either or both of the appellants might have paid to the respondents in consequence of the judgment of Bakare, J., in Suit Nos. LD/635/69 and : LD/636/69 in the Lagos High Court on March 19, 1973, be repaid to them; and (d) That (a), (b) and (c) shall be the judgment of the Court.  We award costs assessed at N105 in the court below and at N114 in this court, to each appellant.

Other Citation: (1974) LCN/1860(SC)

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