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Olatunde Thompson V. S. O. Adefope (1969) LLJR-SC

Olatunde Thompson V. S. O. Adefope (1969)

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In suit AB/41/57 in the Ikeja High Court Kester J. (as he then was) on the 16th of August, 1965 awarded the plaintiff £1,700 dam-ages against the 1st and 2nd defendants jointly and severally and against that decision they have appealed to this Court.

The plaintiff’s writ reads:- “The plaintiff claims from the defendants jointly and severally the sum of £5,000 (five thousand pounds) being general damages for bodily injuries, pain and suffering caused the plaintiff when 2nd defendant’s oil tanker No. LB 1274 negligently driven by the 1st defendant collided with the plaintiff’s car No. G. 7576 at or about mile 7 on the Lagos-Ikorodu Road in the early hours of the 18th of March, 1956.

As a result of the said collision, the plaintiff’s car was damaged beyond repair, and plaintiff sustained serious injuries to his jaw and other parts of the body. The plaintiff has made demands for compensation for the said injury caused him as well as for pain and suffering, but none has, as yet, been paid to him by the defendants.”

PAGE| 2 Paragraphs 4, 5, and 10 of his amended statement of claim reads:- “4. The driver parked the car well off the tarmac on the verge which was on the left side of the road (towards) Lagos), leaving the lights on. 5. The driver has hardly opened the bonnet of the car when the said oil-tanker No. LB 1274 negligently driven by the 1st defendant in the course of his employment collided with the plaintiff’s car from the rear and damaged it beyond repair. 10.

The 1st defendant on the day in question: (i) drove his vehicle at such an excessive speed that he was unable to control it when danger was imminent. (ii) did not keep a proper look out for vehicles on or near the high-way. (iii) drove his vehicle on the verge of the road, that is the Lagos-Ikorodu Road, instead of the tarmac, and so collided with the plain-tiff’s vehicle which was then stationary, and damaged it beyond repair. (iv) did not sound his horn to give warning of his approach.”

Mr. Sofola for the appellants first argued together a number of grounds and appeal going to the finding of the learned trial judge that the accident at about mile 7 on the Lagos/Ikorodu Road in the early hours of the 18th March, 1956 when the 1st defendant, the driver of the 2nd defendant’s oil tanker, drove it into the back of the plaintiff’s car was due to the negligence of the 1st defendant.

It was his submission that no specific act of negligence as pleaded by the 1st defendant was established and that res ipsa loquitur was not pleaded but we pointed out to him that in Kuti v. Tugbobo (1967) N.M.L.R. 419 we had re-iterated what the Federal Supreme Court had earlier stated, namely, that res ipsa loquitur could either be specifically pleaded or the facts could be pleaded so as to show that the plaintiff was relying on the collision itself as establishing prima facie evidence and in our view the plaintiff had done enough here to raise a prima facie case of res ipsa loquitur by pleading as he did in paragraph 4, 5 and 10 (iii) of the statement of claim which we have already set out.

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PAGE| 3 Mr. Sofola then sought to argue that the cause of the accident was that the 1st defendant was blinded by the headlights of an on-coming vehicle, that it was raining, that the red rear lights of the plaintiff’s vehicle might not have been on, and that the 1st defendant said he was only driving at 20 miles per hour and this was never rebutted, and that only the rear off-side back of the plaintiff’s car was hit so that the 1st defendant’s negligence was not established as he might have been trying to avoid the plaintiff’s car which was stationary on the tarred portion of the road when the accident occurred.

The learned trial judge however had rejected the 1st defendant’s story at the hearing that the accident occurred in the middle of the road and believed the plaintiff’s story that his car was parked on the grass verge on the side, and he moreover found that the car had its side-lights on and nobody had suggested before Mr. Sofola tried to take the point before us that at the back the lights would have been other than red; the learned trial judge further reject-ed the 1st defendant’s story that he was blinded by oncoming headlights as he had never told this story in his evidence at his earlier criminal trial which was put in an exh. ‘C’. It is correct that the learned trial judge in his judgment did say:- “I do not believe the 1st defendant that it was raining heavily at the time of the collision and that he did not see plaintiff’s car before he collided with it.

I believe the plaintiff and the 4th plaintiff witness that when the car was stationary, its parking lights were on and that the battery was in working condition. It may be true that the 1st defendant did not see the car where it was parked. But from the evidence before me this was not due to its lights not being on and that he was blinded by the blazing headlights of an oncoming lorry.” (our italics), and that it may therefore be inferred that he did find that it was raining at the time of the accident, but, even so if conditions on a road are adverse it is beholden on a driver to adjust his driving accordingly and to drive more cautiously; indeed if necessary he must stop altogether if it is too dangerous to proceed.  

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A driver cannot risk it and afterwards say it was because of the adverse conditions that the accident happened, but he can only escape liability if he establishes, and the onus is on him in cases of res ipsa loquitur (see Duclaud v. Ginoux SC. 19/68 of 10th January, 1969) that in the prevailing conditions he was driving with the proper care and attention attendant on those conditions. With the onus on him a defendant must at least if he cannot otherwise explain it show that the accident was through no fault of his own.

See Ludgate v. Lowett [1969] 1 W.L.R. 1016 where Harman L.J. at 1019 said:- “….the position appears to be that it being admitted on all hands that the plaintiff’s prima facie is one where res ipsa loquitur applies, the burden is cast upon the defendant to explain that which otherwise is without explanation, or if he cannot explain it-at least show that no fault of his was involved. He can do that even though he cannot explain it. Of course, as the judge said, it is much easier if he can explain it; but nevertheless there are cases in which although no explanation can be found, the defendants satisfy the tribunal that there was no fault on their part and that they did all that they ought to do.”

In our view, therefore, the learned trial judge was entitled to come to the conclusion that he did and find that the accident was caused by the negligence of the 1st defendant, and with the rejection of the 1st defendant’s story as to being blinded his only explanation of the accident was that it was raining and this could not of itself overcome the onus on him of rebutting the prima facie negligence of his colliding with the plaintiff’s car as he was found to do.

Mr. Sofola then argued his ground of appeal which read:- “the award was clearly an erroneous estimate of damages being manifestly too large.” The position here was that the learned trial judge in his judgment on this aspect of the case said: “The evidence of the 1st plaintiff witness which I believe showed that plaintiff’s injury with the attendant pain and suffering was not a minor one …. In awarding damages for bodily injury, pain and suffering it has been said that they must be assessed on the basis of giving reason-able compensation for the suffering entailed.

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Bramwell L.J. in Phillips v. L. & S. W. Railway (1879) 5. C.P.D. 280 said that the proper direction for a jury was:- ‘You must give the plaintiff a compensation for his pecuniary loss, you must give him compensation for his pain and bodily suffering; of course it is almost impossible for you to give an injured man what can be strictly called a compensation; but you must take a reasonable view of the case, and must consider, under all the circum-stances, what is a fair amount to be awarded to him.’ In the light of the evidence before the court and after considering all the circumstances of the case, I hold that a fair amount of damages to be awarded to the plaintiff is the sum of £1,700.” Dr. Otun was the plaintiff’s first witness and his evidence was accepted by the learned trial judge.

The relevant portion of his evidence was as follows:- “On 19th March, 1956 I saw the plaintiff Mr. Adefope at the General Hospital, Lagos. He was bleeding from the nose. He had laceration and bruises on the right side of the face. He was bleeding. His eyes were swollen.

He was admitted. He was treated. An X-ray examination was prepared. In consequence of the result of the X-ray examination I had to operate on him. Before performing the operation plaintiff was give some antibiotics for 5 days. The operation was carried out on 28th March, 1956. Plaintiff was discharged on 11th April, 1956. He continued as an out-patient for a reasonable time.

On examination of the plaintiff when he came to the hospital I found that he had a broken jaw. The right mandible was broken. The right cheek bone was depressed and that was responsible for the homerina.

Any maxilla facial injury is never minor. In this particular case it was not a minor injury. The injury I saw on the plaintiff was consistent with that of a motor-car accident. As an in-patient plaintiff had to pay certain fees to the hospi-tal. As a result of the accident the right molar bone is still slightly depressed.  …

Other Citation: (1969) LCN/1660(SC)

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