JELR 108515 (HC) 1

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[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

MAVIS BASARE (SUING FOR HERSELF AND AS NEXT FRIEND

OF SOPHIA INDO)
V.
KWESI SARKWA
(2016) JELR 108515 (HC)

HIGH COURT · BC 24/2013 · FEB. 29, 2016 · GHANA

CORAM

JUSTICE KWABENA ASUMAN-ADU

JUDGMENT

ASUMAN-ADU, J.

The plaintiff commenced the instant action on her own behalf and as the next friend of Sophia
Indo against the Attorney General on 17th October, 2012 for special and general damages for
being run down by a vehicle which was being driven by Kwesi Sarkwa at the time of the accident
on 4th September, 2010 at about 4:50 am. The Attorney General filed a statement of defence on
14th December, 2012 denying plaintiff’s claim and stating that at the time of the accident the
vehicle had been auctioned to one William O. Mensah. This implies that the defendant lied to the
police when he told the police that the owner of the vehicle was BNI, Ghana. This explains why in
spite of the fact that the vehicle had not been insured he was not charged with driving an
uninsured vehicle.

On 13th March, 2013 the plaintiff filed an amended writ of summons and statement of defence
joining Kwasi Sarkwa as the 2nd defendant. On 25th November, 2013, the 2nd defendant filed his
statement of defence denying plaintiff’s claim. On 9th March 2015 the defendant filed an amended
statement of defence pursuant to this court’s order. Later the suit was discontinued against the
Attorney General leaving the said Kwesi Sarkwa as the only defendant.

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The plaintiff’s claim against the defendant is as follows:

A. SPECIAL DAMAGES – MAVIS BASARE

(1) Medical expenses GHS501. 00

(2) Transport expenses GHS300.00

(3) Miscellaneous expenses GHS500.00

B. SPECIAL DAMAGES – SOPHIA INDO

(1) Medical expenses GHS1343.70

(2) Transport expenses GHS500.00

(3) Miscellaneous expenses GHS500.00

C. GENERAL DAMAGES – MAVIS BASARE

(1) Loss of earnings

(2) Expenses on maidservant

(3) Pain and suffering

(4) Loss of amenities

(5) Hardship and inconvenience

D. GENERAL DAMAGES – SOPHIA INDO

(1) Pain and suffering

(2) Hardship and inconvenience

(3) Loss of amenities

(4) Loss of school hours

(5) Loss of future prospect of life

(6) Loss of dependency

Plaintiff’s case as presented in her amended statement of claim filed on 13th March 2013 is that
she is a trader aged 32 years at the time the suit was filed earning GH¢1320.00 per month. She is
also the mother of Sophia Indo who was aged 12 years at the time the suit was filed. The plaintiff
brings the instant action on her own behalf and as a next friend of her daughter, Sophia Indo.

At the time of the accident, Sophia Indo was a pupil of Oregn International School at Kasoa and
was in Junior High School grade 2.

The plaintiff avers that on the 4th of September, 2010 at about 4:50 am the defendant of the
Bureau of the National Investigations (BNI) at Sefwi Wiawso was driving Opel Kadett vehicle with

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registration number GR 8120 Y from Accra towards Winneba. On reaching a section of the road
opposite Kasoa District Police Headquarters he negligently knocked down the plaintiff and her
daughter, Sophia Indo who were crossing the road from the offside to the nearside.

The plaintiff contends that the accident occurred as a result of the negligence of the driver, the
defendant. She gave the particulars of negligence as the defendant driving without due care and
attention, failure to observe the speed limit whilst driving in town, failure to sound his horn to alert
the victims, failure to make any proper look out or at all, failure to observe the victims crossing the
road, driving too fast in the circumstances, failure to apply his brakes to halt the vehicle and
failure to manage, control, slow down, manoeuvre or swerve his vehicle so as to avoid knocking
down the plaintiff and her daughter, Sophia Indo.

Due to the accident the plaintiff and her daughter, were rushed to the 37 Military Hospital where
they were diagnosed as having sustained severe bodily injuries. Plaintiff suffered head injury,
multiple abrasions and pelvic fracture and her daughter also suffered head injury, fracture neck of
right femur, salter – harris fracture of left humerus head and multiple abrasions and lacerations.

The plaintiff avers that she was on admission for seven (7) days at the 37 Military Hospital whilst
her daughter Sophia Indo was later transferred to Koforidua St. Joseph Hospital where she was on
admission for two months. Thereafter, the plaintiff and her daughter continued to receive treatment
as out-patients for another eight (8) months.

The plaintiff and her daughter incurred medical and other expenses due to the accident. She says
for a period of about 19 months after the accident she was unable to carry out her trading activities
leading to great financial loss to her. For the first six months the plaintiff had to engage the
services of a maidservant to assist her in her household chores and was paying her GH¢150.00
per month.

The plaintiff says that the accident prevented her from enjoying the attributes of life and greatly
suffered loss of amenities, pain and suffering, inconvenience and hardships. For a period of about
10 months her daughter was not able to attend school and this naturally affected her academic
work. This has also imposed additional cost to the plaintiff since she was paying GH¢120.00 per
term as school fees and transport to and from school.

The plaintiff contends that her daughter, Sophia Indo who used to be the school top athlete can no
longer run for the school neither is she able to participate in other extra – curriculum activities.

Also her daughter used to assist her in her household chores but lost these facilities as a result of
the injuries sustained by the daughter.

She says Sophia Indo has suffered pain, loss of amenities, inconvenience and hardship and loss
of dependency. The plaintiff is, therefore, entitled to her claim.

The defendant’s case on the other hand is that he was never an operating factor in the alleged
accident. He denies any allegation of negligence and further states that he was travelling at the
rate of thirty to thirty five kilometers per hour and was all the time paying proper attention to his
driving. He maintains that he exercised reasonable care and diligence and was not the cause of
the plaintiff’s injuries.

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He contends that the plaintiff and her daughter acted in an irresponsible manner and did not take
reasonable care for their own safety by not crossing the highway through a zebra crossing
causing a dangerous situation of which they were aware. They fail to abide by the provisions of
the Highway Traffic Regulation. The negligence of the plaintiff was an operating factor in the said
accident.

The defendant gave particulars of the plaintiff’s negligence as failure to pay sufficient heed to an
approaching vehicle, failure to keep proper look out or have sufficient regard for traffic on the said
road, stepping suddenly onto the road without sufficient signal or warning to approaching vehicle
and crossing a lorry road when it was unsafe to do so.

The defendant goes on to contend that the plaintiff and her daughter did not in their own interest
take reasonable care of themselves and contributed by their want of care to their own injuries. He
says it was the plaintiff who suddenly dashed into the lane of the traffic of the vehicle and
knocked herself against the defendant’s windscreen. He says further that the plaintiff’s own failure
to take the reasonable care of stopping at where she knew was a dangerous crossing which
resulted in the alleged accident.

Defendant denies plaintiff’s assertion that the accident has affected her trading activities and avers
that on 7th September, 2010 when plaintiff regained consciousness and he was interacting with
her the plaintiff disclosed to him that she was selling doughnuts on commission basis. He goes
on to say that one Martha who is a close friend of the plaintiff whom the defendant paid to take
care of the plaintiff while on admission also questioned the plaintiff why she did not wait for the all
night service to come to a close before leaving the church premises and plaintiff replied that she
was in a hurry to go for some of the doughnuts.

The defendant denies that the plaintiff incurred medical expenses. He says when the plaintiff was
discharged she called to inform the defendant that the Hospital Authorities had refunded the
GH¢350.00 defendant deposited for her surgical operation which was never carried out. The
defendant asked the plaintiff to keep that amount of money to take care of Sophia Indo, her
daughter who was still on admission.

The defendant contends that besides miscellaneous expenses made by him on the plaintiff and
her daughter, sometime in March, 2011 plaintiff called to inform him that she had sent her
daughter to St. Joseph Catholic Hospital in Koforidua for an operation to be carried out on one of
her legs. Defendant says that plaintiff demanded that defendant pays the bill which was
GH¢700.00. He paid the said money through plaintiff’s commercial bank account. He also visited
the plaintiff in Koforidua after the surgery and gave them some money.

The defendant contends that per information he got from the said Martha, Sophia Indo had that
deformity on her leg before the accident. He, therefore, contends that the plaintiff is not entitled to
her claim, either for herself or next friend.

At the trial the plaintiff gave evidence on her behalf and on behalf of her next friend and called the
investigator to give evidence in prove of her case. The testimony of the plaintiff and that of the
investigator were essentially a repetition of plaintiff’s averments in her pleading. The defendant on
the other hand gave evidence but called no other witness to prove his case. Like the plaintiff her
testimony was essentially a repetition of his averments in his pleading.

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Having reviewed the evidence before the court I will now go on to deal with the issues this court
has been called upon to determine vis-à-vis the evidence before the court.

The plaintiff raised the following issues in her application for directions filed on 10th January,
2014:

a. Whether or not the defendant was negligent.

b. Whether or not the plaintiff and the daughter sustained injuries as a result of the accident.

c. Whether or not the plaintiff and the daughter negligently contributed to the occurrence of the
accident.

d. Whether or not the plaintiff is entitled to her reliefs.

e. Any other issue arising out of the pleadings.

The defendant on the other hand filed the following additional issues on 31st January, 2014:

a. Whether or not plaintiff has the duty to cross the highway through a zebra crossing.

b. Whether or not plaintiff and her daughter failed to observe the Highway Traffic Regulation in the
circumstance of the instant suit.

At the hearing of the application for directions on 26th February, 2014 it was observed with the
consent of both parties that both additional issues are caused by issue (c) of the application for
directions so both additional issues were deleted. In view of that all the issues raised in the
application for directions were set down for determination by this court. The said issues will be
taken seriatim.

The first issue for determination is whether or not the defendant was negligent. On this issue
whilst the plaintiff contends that the accident occurred due to the negligence of the defendant, the
defendant contends that he was very careful on the day in question and that it was rather the
plaintiff who sensing danger took a dive as a result of which she hit herself against the defendant’s
vehicle and in the process her hand hit the windscreen and caused damage to it.

The plaintiff told the court in her evidence that on the day in question at dawn she and her
daughter were returning from church and when they got to the road side and had to cross it in front
of Kasoa Police Station, vehicles from their left hand side stopped for them to cross the road. She
observed traffic from her right-hand side and made sure that no vehicle was coming before she
started crossing. In the process she sighted a car which was speeding from her right-hand side
and the driver of the said vehicle was trying to apply his brakes but he could not. The said vehicle,
therefore, knocked down the plaintiff and her daughter, Sophia Indo and the plaintiff saw nothing
again. When she regained consciousness she was on admission at the 37 Military Hospital. She
said the driver was over speeding at that time, hence the accident.

The defendant also told the court in his evidence that around 4.50am. on 4th September, 2010 he
was driving an Opel Kadett vehicle from Accra to Gomoa Odjobi in the Central Region. On
reaching a section of the road in front of Kasoa Police Station, there were two heavy trucks in a
convoy approaching from the opposite direction. At that time the plaintiff was crossing the road

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from the off-side to the near-side. Thinking that the said truck would stop for her, she entered the
truck’s lane but the driver of that vehicle refused to stop. Plaintiff sensing danger took a dive and
crashed her forehead onto the left side of the windscreen of defendant’s vehicle. The plaintiff
rolled over and fell in front of the vehicle.

The defendant immediately stopped his vehicle. The defendant contends that he was not speeding
as being alleged and that if he was speeding he would have ran over the plaintiff. He also said the
plaintiff never crossed his vehicle. She rather stepped onto the road without taking due care and
sensing danger that she was going to be knocked down by a heavy truck she let go her daughter
and took a dive and crashed her body onto the side of his vehicle and knocked her forehead onto
his windscreen and caused damage to it. Plaintiff’s body broke the driving mirror.

So from the evidence as presented by the plaintiff and the defendant, the plaintiff attributes the
accident to the negligence of the defendant whilst the defendant attributes it to lack of due care
and attention on the part of the plaintiff. So the question is which of the evidence on record is more
probable?

In proving her case the plaintiff invited the investigator who investigated the case to give evidence
as PW1. He told the court that on 4th September, 2010 a case of road traffic accident involving the
defendant and the plaintiff and her daughter was referred to him for investigations. He visited the
scene but the victims had then been taken to the hospital. He, therefore, marked the relevant
points. After that he visited the plaintiff and her daughter at the hospital and issued them with
medical forms. After the discharge of the plaintiff from the hospital PW1 visited the scene of the
accident with the plaintiff and the defendant. Each of them pointed to a different point of impact.
After that he took measurements of the relevant points in their presence. He then drew a sketch
of the scene which was signed by the defendant and the plaintiff thumb printed it. The said sketch
was tendered in evidence as Exhibit E.

The evidence before the court as presented by both the plaintiff and the defendant shows that
both victims became unconscious as a result of the accident. They became conscious whilst on
admission at the hospital. In view of that the recollection of the plaintiff of the various points of the
accident could not be accurate. The defendant on the other hand was conscious and alert at all
material times before and after the accident. In view of that unlike the plaintiff his recollection of
the various positions of the accident is expected to be accurate. More so he appended his
signature to the sketch which is an indicative to the fact that he approved of what the sketch
portrayed in so far as the accident was concerned.

The defendant told the court during cross examination that when he was signing the sketch the
key to the sketch was not there. He, however, goes on to say that the key points to the sketch
were there at the time he signed it. In the first place the sketch was prepared based on the key
points. It is also not possible the sketch would be prepared without its key. This is because without
the key the sketch is meaningless. More so as a BNI official with that long experience as a driver,
I do not expect him to sign an accident sketch without a key. I, therefore, do not accept his
assertion that at the time he signed the sketch the key was not there. If that was the case then he
should have challenged PWI on it when he was in the witness box. It is my opinion that the key
was there at the time he signed so he approved of the information captured on the sketch as
pointed by him.

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According to the sketch point of impact No. 2 is the point of impact shown by the defendant. It
shows that from the point of impact as shown by the defendant to the resultant position of the
accident vehicle is 4 meters. This was shown to PW1 by the defendant himself. This evidence as
captured from the sketch is contrary to the defendant’s evidence as given in court.

The defendant told the court in his evidence-in-chief that at the scene of the accident there were
two heavy trucks in a convoy approaching from the opposite direction. At that time the plaintiff was
crossing the road from the off-side to the near-side. Thinking that the said truck would stop for her
the plaintiff entered the truck’s lane but the driver of the truck refused to stop. Sensing danger, the
plaintiff took a dive and crashed her forehead onto the left side of the windscreen of the
defendant’s vehicle. He immediately stopped the vehicle.

If this was what actually happened then the resultant position would not have been as shown on
the sketch. From the sketch the distance between the point of impact as shown by the defendant
and the resultant position of defendant’s vehicle is 4 meters. This does not mean the defendant
stopped immediately. It means he stopped at a distance of 4 meters away. Also if truly the plaintiff
fell directly in front of the defendant’s vehicle as he wants to portray then from the sketch he
would have ran over her which was not the case.

The description of the accident as given by the defendant in the sketch, therefore, does not
correspond to his evidence given in court. The inference that could be made from defendant’s own
evidence as given in court and the sketch is that, firstly he did not stop immediately after the point
of impact as alleged by him. Secondly the plaintiff did not fall in front of his vehicle as alleged by
him. It goes on to show that either the plaintiff fell at a distance beyond the 4 meters distance
between the point of impact shown by him and the resultant position of his vehicle or the point
shown by the plaintiff which is point C on the sketch. From both observations it shows that at the
time of the accident the defendant was not observing the speed limit when driving in town which is
between 30kmph and 50kmph.

With respect to the plaintiff’s daughter, the sketch said nothing about where she fell. According to
PW1 the plaintiff could not show where her daughter fell after the accident. This could be due to
the fact that the plaintiff became unconscious after the accident so she could not possibly know
where the daughter fell.

In his evidence-in-chief defendant told the court that some two gentlemen who assisted him to lift
plaintiff drew his attention to the fact that there was a young girl lying unconscious at the other side
of the road. He was then at a loss whether they were moving together. From his evidence it
implies he never saw the daughter of the plaintiff so he could not tell how the daughter of the
plaintiff got injured from the accident. However, in reaction to paragraph 5 of plaintiff’s reply to his
statement of defence, defendant said in his evidence-in-chief that plaintiff never crossed his
vehicle. She rather stepped onto the road without taking due care and sensing danger that she
was going to be knocked down by a heavy truck she let go her daughter and took a dive and
crashed her body onto the side of his vehicle.

It is presumed from that statement made by the defendant in his evidence that he saw that the
plaintiff was with the young girl and sensing danger she left her to go. This implies that if the
defendant says he was at a loss as to whether the plaintiff was moving together with the young
girl then he is not being truthful to the court. From his own evidence he saw that the two of them

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were moving together at the time of the accident.

The defence of the defendant is that the plaintiff sensing danger let go her daughter and took a
dive and crashed her forehead onto the left hand side of the windscreen of his vehicle. In support
of that he tendered in evidence a picture of his vehicle as Exhibit 1. The said exhibit clearly shows
damage on the left hand side of the windscreen of his vehicle. The said evidence is, however,
inconsistent with the description given by him in the sketch. If it is true that the plaintiff took a
dive, crashed her forehead onto the windscreen, fell on the vehicle and rolled to fall down in front
of defendant’s vehicle then taking into consideration the points shown by him on the sketch his
vehicle would have ran over the plaintiff. Since that did not happen the court finds it difficult to
accept that piece of evidence of the defendant. Even it is not known when Exhibit 1 was taken so
the court cannot rely on that exhibit to make a decision in this case.

The defendant further said in his evidence-in-chief that where the accident occurred is a very
straight stretch of road where a car could be seen from about 500 meters away. The inference
made from this statement is that it is possible for a driver on that road like the defendant to see
persons crossing the road from the same distance. It is, therefore, presumed that the defendant
saw the plaintiff and her daughter crossing the road. However, because that portion of the road
was straight and considering low traffic on the road at that time of the day, the defendant took
advantage to over speed so he could not apply his brakes when he saw the plaintiff and her
daughter, hence knocking them down.

If he was not speeding and was paying due care and attention to other road users he would have
realized that other vehicles from the opposite direction had stopped for the plaintiff and her
daughter to cross and he could have slowed down and applied his brakes and stopped to allow
them to cross. By this he would have avoided knocking them down.

This observation made by the court is supported by the Police Accident Report which was
tendered in evidence by PW1 as Exhibit F without objection by the defendant. That report states
that on the day in question the defendant drove his vehicle without due care and attention to
other road users and as a result he knocked down Mavis Basare aged 32 years and her 12 years
old daughter, Sophia Indo who were crossing the road from the off-side to the near-side.

The report goes on to show that on 3rd August, 2011 the defendant was arraigned before court on
the charges of Careless and Inconsiderate Driving and Negligently Causing Harm and he pleaded
guilty on both counts as a result of which he was convicted on his own plea and sentenced to a
fine on both counts which he duly paid. The report was tendered in evidence by PW1 who was
subjected to cross examination by counsel for the defendant but he never challenged the contents
of the report during the said cross-examination. This implies that the defendant agreed to the facts
of the case which showed that he knocked down the plaintiff and her daughter because he failed
to drive his vehicle on the day in question with due care and attention to the plaintiff and her
daughter who were also using the road at that point in time.

For pleading guilty to the offences and being convicted and sentenced by the court, it raises a
prima facie evidence of negligence on the part of defendant and it behoves the defendant to
produce evidence to rebut this presumption as stated in the case of Adom v. Ntow [1992-93] 4
GBR 1603.

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In the instant case the defendant could not lead sufficient evidence to impeach the facts as
depicted by the sketch, Exhibit E. As stated elsewhere in this judgment the defendant appending
his signature to the sketch is an indication of the fact that he accepted the facts depicted in the
sketch as representing the accident scene pointed by him. Also the facts contained in Exhibit F,
the police report were consistent with the points shown on the sketch which clearly show that the
defendant was negligent and caused the accident which resulted in the injuries to the plaintiff and
her daughter.

So from the totality of the evidence before the court on the issue under consideration the
defendant drove his vehicle on the day in question without due care and attention as a result of
which he knocked down the plaintiff and her daughter. The defendant was, therefore, negligent on
the day in question and I so hold.

The next issue for consideration is whether or not the plaintiff and her daughter sustained injuries
as a result of the accident.

The evidence on record as given by the plaintiff shows that on the day in question the plaintiff and
her daughter were crossing the main Accra to Winneba Road at Kasoa near the police station
from the off-side to the near-side when they were knocked down by the defendant’s vehicle. Both
of them became unconscious and when the plaintiff regained consciousness they were both on
admission at the 37 Military Hospital. PW1 corroborated the evidence of the plaintiff when he said
that on the day in question a case of road accident involving the defendant was referred to him for
investigations. It came to his notice that the plaintiff and her daughter who were the victims had
already been taken to the 37 Military Hospital so he visited them at the hospital and met both of
them at the hospital.

The defendant gave a further corroborative evidence when he said both the plaintiff and her
daughter became unconscious as a result of the accident and they were both rushed to the 37
Military Hospital. He went on to say that he paid for some medical bills of the plaintiff and the
daughter at 37 Military Hospital. He further said that he even paid the bill when the daughter of the
plaintiff was sent to Koforidua St Joseph Hospital.

In support of the assertion of the plaintiff and her daughter sustaining injuries from the accident the
plaintiff tendered in evidence the medical report on both of them as Exhibits A and B respectively.
The said report confirms that both the plaintiff and her daughter sustained various degrees of
injuries. There is, however, nothing in Exhibit B showing that the plaintiff’s daughter was actually
referred to Koforidua St Joseph Hospital by the 37 Military Hospital. There is also no report on her
from St Joseph Hospital indicating the extent of her injuries and whether or not she sustained
those injuries from the accident. In spite of this observation there is sufficient evidence as shown
in Exhibits A and B that the plaintiff and her daughter were injured on the day in question as a
result of the accident which was caused by the negligence of the defendant and I so hold.

The next issue for consideration is whether or not the plaintiff and the daughter negligently
contributed to the occurrence of the accident on the day in question.

On this issue the defendant contends that it was because the plaintiff took a dive and crashed
herself at his vehicle that the accident occurred. It has, however, been established by this court
that the evidence on record does not support the assertion that the plaintiff took a dive. In the

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opinion of the court the accident occurred because the defendant did not exercise due care and
attention, hence the accident.

The defendant further creates an impression during cross-examination that the accident occurred
because the plaintiff and her daughter were crossing the road at a place where there was no
zebra crossing. They, therefore, crossed the road at their own risk. The plaintiff, however, insisted
that where she and her daughter crossed the road which is in front of the Kasoa police station is
where all pedestrians crossing the road to and from the other side of the road use.

This assertion of the plaintiff was corroborated by PW1. He said though there is no zebra crossing
at that point that is where everybody uses to cross the road. That is, that point of the road has
been so notoriously used by pedestrians that it has assumed the character of a zebra crossing.
According to PW1, due to that notorious use of the place by pedestrians to cross the road, the
police usually posted a guard there to regulate traffic at that point.

It is pertinent to note that the fact that the plaintiff and her daughter attempted to cross the road at
that point, where there was no zebra crossing, would not amount to contributory negligence. The
question that would have to be addressed is whether the defendant exercised due care and
attention to other road users at that point in time.

The plaintiff told the court that when they got there all vehicles approaching from Winneba direction
stopped for them to cross. She went on to say that she looked on the left to ensure that indeed all
the vehicles had stopped. She then looked on her right-hand side to see whether it was safe to
cross. After she had satisfied herself by looking at both sides of the road to ensure that it was safe
to cross, she and her daughter then attempted to cross. All of a sudden the defendant’s vehicle
which was speeding knocked them down.

Though counsel for the defendant cross-examined the plaintiff extensively on this issue he could
not impeach this piece of evidence given by the plaintiff. I refer to this aspect of the cross-
examination in this judgment.

“Q: At the time of the accident was the weather clear or not?

A: It was at dawn.

Q: Could you see at a long distance from where you were standing?

A: Yes. I could see from afar.

Q: I am suggesting to you that you did not take any look at either direction of the road before
crossing it.

A: I insist that I looked at both sides before crossing.

Q: I also put it to you that the defendant was not speeding at all as alleged by you.

A: I insist that the driver was over speeding other than that my daughter would not have sustained
the extent of injuries she sustained.

Q: At the place where you crossed was there any cross walk or zebra crossing?

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A: What I know is that that is where everybody crossed the road. I was not the only person who did
so.

Q: Was there any Zebra crossing.

A: There is no zebra crossing.

Q: I am suggesting to you that you crossed that part of the road at your own risk.

A: That is not true, that is where everybody crossed the road so I did not risk my life.

Q: I am putting it to you that at the time you hit your forehead at the vehicle’s windscreen his car
was not moving it was stationary.

A: That is not true.

Q: Can you tell the Court where you laid immediately after the accident?

A: I cannot tell.

Q: I am putting it to you that immediately after the accident you were lying just in front of the
defendant’s car.

A: As for me he hit me with the vehicle I did not see anything so I cannot tell where I was lying.”

From the said cross-examination I agree with counsel for the plaintiff that the plaintiff was firm with
her responses and maintained that she observed traffic rules by looking at both sides before
crossing notwithstanding the fact that the point of crossing had not been marked as zebra
crossing.

In the case of Ivanov v. Speedy Travel and Tour Ltd. And Another [1974] 2 GLR 227 Abban J
(as he then was) held in holding 2 as follows:

“A breach of any of the provisions of the Highway Code did not create a presumption of
negligence which called for explanation; neither did it raise a presumption of negligence
making real contribution to causing an accident. Such a breach was merely one of the
circumstances on which a party to the proceedings could rely to establish the negligence
of the other. The question therefore was not whether the plaintiff failed to abide by the
provisions of the Highway Code or the road traffic regulations but whether in the
circumstances of the case the plaintiff acted in a responsible manner and took reasonable
care for his own safety by leaving the pavement and walking in the roadway. No
contributory negligence by the plaintiff was proved and even if he was negligent his
negligence was never an operating factor in the accident.”

On the issue of contributory negligence Osei-Hwere J (as he then was) held in the case of
Nsowah v. the Republic [1974] 1 GLR 34 at holding 2 as follows:

“Pedestrians owed as much duty of care to themselves and to motorists as motorists owed
to them. Consequently, where a pedestrian jumped on to the road, in the face of moving
traffic, without regard for his own safety and thereby created an emergency to a motorist
who had no cause to expect any potential danger, he would not be entitled to complain that

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the motorist had not showed enough skill to avoid the danger.”

In the instant case as stated elsewhere in this judgment, though where the plaintiff and her
daughter crossed had not been marked as zebra crossing, that is a popular place where people
cross the road from one side to the other to the extent that police normally post a guard there to
direct traffic.

It is also observed from the evidence on record that the plaintiff and her daughter did not suddenly
jump unto the road thereby creating an emergency situation for the defendant. The evidence
rather shows that vehicles from her left-hand side had stopped for her and her daughter to cross.
She then took reasonable care to ensure safety of herself and her daughter by looking left, right
and left to ensure that the road was safe before attempting to cross it. The plaintiff and her
daughter were, therefore, not the operating factors in the accident. The defendant could,
therefore, not prove any contributory negligence against the plaintiff and her daughter.

The evidence on record rather shows that the defendant failed to exercise due care and attention
and that if he was not speeding he could have avoided knocking the plaintiff and her daughter by
applying his brakes in order to stop for them to cross. Plaintiff and her daughter, therefore, did not
negligently contribute to the occurrence of the accident on the day in question. Rather it was the
defendant who did not exercise due care and attention on the day in question, therefore, leading
to the accident.

The last issue is whether or not the plaintiff is entitled to her reliefs. Plaintiff has put in a claim for
both special and general damages for herself and her daughter. The question, therefore, is
whether the plaintiff is entitled to be paid damages for herself and her daughter? It has been held
by this court in this judgment that both plaintiff and her daughter sustained injuries which resulted
from being knocked down by defendant’s vehicle on the day in question. Since they sustained
injuries due to defendant’s negligence then they are entitled to be paid damages. The question
then is what quantum of damages should be paid to them? The plaintiff has pleaded that they
should be paid both special and general damages. I will, therefore, start with her claim for special
damages.

Special damages consist of out of pocket expenses and loss of earnings actually incurred, as a
result of the accident and are generally capable of substantially exact calculation. It has to be
specifically pleaded and proved and the amount paid as special damages is limited to the amount
pleaded and proved. See the case of Banini (an infant) v. Asare [1992] 1 GLR 383. See also the
case of Kubi and Others v. Dali [1984-86] 2 GLR 501. In that case the Court of Appeal held at
holding 1 as follows:

“Special damages in the sense of a monetary loss which the plaintiff had sustained up to
the date of the trial must be pleaded and particularized and then proved by admissible
evidence otherwise it could not be recovered. In the instant case, the plaintiff had set out
particulars of her special damages in conformity with the requirement of pleadings. Given
the circumstances of the case, the production of receipts at the trial would not be the only
legitimate means of proving special damages.”

In the instant case the plaintiff has particularized special damages for herself and her daughter,
both in her pleadings and evidence-in-chief as follows: For herself she claims special damages of

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GH¢ 501.00 for medical expenses, GH¢ 300.00 for transport expenses and GH¢ 500.00 for
miscellaneous expenses, the total being GH¢ 1301.00 in respect of the plaintiff as special
damages.

For her daughter the plaintiff claims special damages of GH¢ 1343.70 for medical expenses, GH¢
500.00 for transport expenses and GH¢ 500.00 for miscellaneous expenses as special damages.
On the medical expenses in respect of the plaintiff’s daughter at Koforidua the evidence before the
court which was not denied by the plaintiff is that when he sent her daughter to Koforidua he
called the defendant to inform him of it and told him that the hospital was demanding an amount
of GH¢700.00 which he paid. Meanwhile, Exhibit D7 being official receipt for an amount of
GH¢649.90 which was allegedly paid for the treatment of the plaintiff’s daughter at that hospital
has been added to medical expenses the plaintiff incurred on her daughter. Since that amount has
already been paid by the defendant paying that amount again would amount to double payment.
That amount is, therefore, taken from the medical expenses incurred in respect of plaintiff’s
daughter. In view of that the court puts plaintiff’s daughter’s medical expenses at GH¢693.80.

These expenses were duly particularized and receipts in respect of some of the medical expenses
tendered in evidence as Exhibits C, C1 to C7 for the plaintiff and Exhibits D, D1 to D10 for her
daughter.

Plaintiff was cross examined by counsel for the defendant but she was not challenged on this
piece of evidence during the said cross examination. The only thing defendant said was that he
also incurred some expenses on plaintiff and her daughter. He said before the victims were
conveyed to the hospital he had to provide money for four gallons of diesel for the police pick-up
that conveyed them to the hospital. At the hospital the defendant claims he was made to deposit
GH¢ 500.0 for their medication and GH¢ 350.00 for an operation if necessary. On the following
day the plaintiff and her daughter were sent to another facility for scanning which cost GH¢ 350.00
per head making a total of GH¢ 700.00 which he paid. The defendant also paid GH¢ 90.00 for the
ambulance which conveyed them to the facility for the scanning and back. He also paid GH¢
700.00 in respect of plaintiff’s daughter’s medical expenses at St Joseph Hospital at Koforidua.

The evidence on record, therefore, shows that even though the defendant contends that he also
incurred some expenses he did not dispute the fact that the plaintiff also incurred medical
expenses in respect of the injuries they sustained as a result of the accident. The plaintiff even
went on to say during cross-examination that for the medication administered on them after she
had regained consciousness she paid for all of them. However, if someone paid for any
medication when she was unconscious she could not tell. It is, therefore, my view that the
defendant admits that the plaintiff actually incurred those expenses she has particularized which
she incurred after she had regained consciousness. See the case of Takoradi Flour Mills v.
Samir Faris [2005-2006] SCGLR 882 where the Supreme Court held at holding 1 as follows:

“The law is well settled … that where the evidence led by a party is not challenged by his
opponent in cross-examination and the opponent does not tender evidence to the contrary,
the facts deposed to in that evidence are deemed to have been admitted by the opponent
and must be accepted by the trial court.”

In the instant case the evidence clearly shows that the plaintiff was on admission at the hospital
for one week and her daughter was on admission for over two months at 37 Military Hospital. After

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that both continued to receive treatment from the hospital for eight months as out-patients.

Meanwhile, it is observed that apart from the GH¢ 700.00 paid by the defendant in respect of
plaintiff’s daughter’s treatment at Koforidua all the expenses incurred by him were before the
plaintiff regained consciousness. It is, therefore, obvious that the Plaintiff would actually incur
some expenses. There is, therefore, no doubt that she made those expenses on the items she
has particularized both for herself and her daughter. The plaintiff has, therefore, led sufficient
evidence to prove her special damages on balance of probabilities. This court, therefore, accepts
plaintiff’s evidence on the issue of special damages except the medical expenses allegedly
incurred by her at Koforidua. In the circumstance she is entitled to be paid special damages for
herself and her daughter as endorsed on her writ of summons less the expenses allegedly
incurred by her at Koforidua and I so hold.

On the issue of general damages the plaintiff has pleaded for general damages for loss of
earnings, expenses on maidservant, pain and suffering, loss of amenities and hardship and
inconvenience for herself and for her daughter she has pleaded for general damages for pain and
suffering, inconvenience and hardship, loss of amenities, loss of school hours, loss of future
prospects of life and loss of dependency.

On this issue since presumption of damages has been established against defendant the plaintiff
and her daughter being victims of the accident which was caused by the negligence of the
defendant, both the plaintiff and her daughter are entitled to be paid general damages by the
defendant as compensation for the injuries they suffered as a result of the accident. This is
because the position of the law on negligence is that when one person causes harm of any kind to
another person, the normal remedy which the law gives is a right to recover damages.

Damages simply refer to a sum of money, given as compensation for loss or harm of any kind.
See Munkman, Damages for Personal Injuries and Death, 7th Edition page 1. The question
then is what quantum of damages the Plaintiff is entitled to be paid for herself and her daughter?

On the quantum of damages to pay to the Plaintiff in such cases, the case of Asante Kramo
Alias Kuma v. Attorney General [1975] 1 GLR 319 provides the guiding principles for
assessment of damages in personal injury cases. In that case Taylor J as he then was identified
the factors that should be considered under general damages. According to him it includes
compensations for pain and suffering and the like and, if the injuries suffered are such as to lead
to continuing or permanent disability, compensation for earning power in the future. The basic
principle as far as loss of earnings and out of pocket expenses are concerned, is that the injured
person should be placed in the same financial position so far as can be done by an award of
money as he would have been had the accident not happened.

The same case goes on to state that on a temporary or permanent loss of a limb, organ or faculty,
what is to be compensated for is the loss of use and the deprivation thereby occasioned. This may
bring with it three consequences. Firstly, it may result in loss of earnings. Secondly, it may put the
victim to expense in that he has to pay others for doing what he formerly did for himself. Thirdly, it
produces loss of enjoyment, loss of amenities as it is sometimes called diminution in the full
pleasure of living.

Also in the case of Fibre Bag Manufacturing Co. v. Sarpong [1967] GLR 657 the Court of

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Appeal held that in assessing damages to be paid to the plaintiff the court must consider the
following factors: (a) prospective loss of earnings (b) pain and suffering (c) Loss of amenities of
life. Also in awarding damages the court will have to take into account the economic factors of the
day and purchasing power of money of the day into consideration.

It is also held in the case of Banini (An Infant) V. Asare (supra) that a Plaintiff is entitled to
damages for the suffering arising from not only the injury itself but consequential surgical
operation. Such damages also cover physical pain, mental anguish caused by the injury and the
knowledge that the incapacity would affect the victim’s enjoyment of life.

In the instant case the evidence on record shows that both the plaintiff and her daughter became
unconscious after the accident. They were both rushed to 37 Military Hospital where they were
admitted to the hospital. The plaintiff was on admission for about one week after which she
continued to receive treatment as out-patient for a period of about eight months. Her daughter was
also on admission for over two months after which she also continued to receive treatment as out-
patient for period of about eight months.

The medical report on plaintiff, Exhibit A indicates that she was diagnosed of head injury, multiple
facial abrasions and pelvic fracture and examination on arrival revealed multiple facial abrasions
with Glasgow coma of 13/15. After treatment she still complained of the following complications
from her injuries:

a. Persistent pain in her right groin

b. Headaches and

c. Post traumatic stress syndrome.

On her daughter the medical report, Exhibit B indicates that she was seen unconscious with a
Glasgow Coma scale of 9/12. It goes on to show that she suffered a severe head injury and later
had to be seen by the trauma/othopaedic team and now walks limping on her right lower limb. As
stated elsewhere in this judgment there was nothing in the report indicating that plaintiff’s daughter
was referred to Koforidua St. Joseph Hospital. Also no medical report was tendered in evidence
from that hospital indicating the nature of diagnosis made there and whether she was there
because of the accident.

Exhibits A and B clearly show that both plaintiff and her daughter went through pain and suffering,
both physical and mental for some time which resulted from the accident. Also they were both
traumatized. This shows that both plaintiff and her daughter suffered some amount of pain for
which they ought to be compensated. See the case of Banini v. Asare (supra) in which Lutterrodt
J (as she then was) observed as follows:

“There is no doubt that the Plaintiff was in much pain following the injuries he received.
Much repair work had to be done on his hands. No wonder the doctor described his
condition as serious and requiring immediate surgery, etc. A Plaintiff is entitled to
damages for suffering arising not only from the injury itself, but any consequential surgical
operation. Such damages also cover the physical pain and the mental anguish caused by
the injury. Furthermore, in assessing damages, the court has to take account of the mental
suffering caused by the knowledge that the incapacity would affect the victim’s enjoyment

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of life.”

In the instant case, the plaintiff told the court that she was earning about GH¢1,300.00 a month
from her petty trading business but due to the accident she was not able to ply her trade for about
two years after the accident. Even though this piece of evidence was not denied by the defendant
during cross-examination considering the type of trading the plaintiff said she was doing I find it
difficult to accept her evidence that she was earning that much a month. She said she was a petty
trader selling everything she could get and that she was going round selling which implies she
was hawking.

I, therefore, put her monthly earnings from her trade at about GH¢700.00 and not GH¢1,300.00
since that amount is on the higher side. I also agree with her that due to the accident she was not
able to ply her trade as she was doing before the accident. The court, therefore, grants her
damages for loss of earnings of GH¢700.00 per month for 12 months which sums up to
GH¢8400.00.

The plaintiff also said that he engaged a maidservant to assist her in her household chores and
she was paying her GH¢150.00 a month. This piece of evidence was also not denied by the
defendant during cross examination. The plaintiff told the court in her evidence-in-chief that the
maidservant was with her for over one year. She, however, stated in her amended statement of
claim filed on 13th March, 2013 at paragraph 16 that she engaged the maidservant for the first six
months. He cannot, therefore, claim the expenses on maidservant for twelve months. Rather she
can claim for six months as stated in her statement of claim which was prepared at the time when
that evidence was fresh in her mind. The plaintiff is, therefore, entitled to be paid damages for
maidservant’s expenses of GH¢150.00 a month for six months which sums up to GH¢900.00.

For pain and suffering, loss of amenities of life and hardship and inconvenience, I award damages
of GH¢20,000.00 for the plaintiff.

In respect of plaintiff’s daughter considering the extent of injuries suffered by her I award general
damages of GH¢30,000.00 to cover pain and suffering, loss of amenities of life, hardship and
inconvenience and loss of future prospect of life.

In conclusion I enter judgment for the Plaintiff as follows:

a. The defendant is hereby ordered to pay to the plaintiff special damages as follow:

PLAINTIFF

(i) Medical expenses - GH¢501.00

(ii) Transport expenses - GH¢300.00

(iii) Miscellaneous expenses - GH¢500.00 TOTAL GH¢1301.00

PLAINTIFF’S DAUGHTER

Medical expenses - GH¢693.10

Transport expenses - GH¢500.00

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Miscellaneous expenses - GH¢500.00

TOTAL GH¢1693.10

b. The defendant is further ordered to pay to the plaintiff an amount of GH¢29,300.00 as general
damages in respect of the plaintiff herself for pain and suffering, loss of earnings, maidservant
expenses, loss of amenities of life and hardship and inconvenience.

c. It is further ordered that the defendant pays to the plaintiff an amount of GH¢30,000.00 as
general damages in respect of plaintiff’s daughter for pain and suffering, loss of amenities of life,
hardship and inconvenience and loss of future prospects of life.

Plaintiff’s costs are assessed as GH¢10,000.00 which the defendant is ordered to pay.

KWABENA ASUMAN-ADU J

JUSTICE OF THE HIGH COURT

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APPEARANCES

COLLINS SOLOMON ESHUN, ESQ. FOR THE PLAINTIFF; KWASI OWUSU AGYEMANG,
ESQ. FOR THE DEFENDANT.

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