REV. JOHN KORLEY VRS NARH & ANOTHER (C8/02/2019) [2024] GHAHC 365 (31 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN SOMANYA ON WEDNESDAY THE 31ST DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIAM SALEH SINARE (MS) Time: 12:29pm. SUIT NO: C8/02/2019 REV. JOHN KORLEY } PLAINTIFF VRS 1. SETH KOJO NARH } 2. ERSCO VENTURES LTD } DEFENDANTS PARTIES: Plaintiff Present 1st Defendant Absent 2nd Defendant represented by Adotey Simon COUNSEL: CLARKE NOYORU ESQ. for the Plaintiff Absen E. ASAFO-ADJEI ESQ. holding brief for K. AMOAKO ADJEI ESQ. for the 2nd Defendant Present JUDGMENT INTRODUCTION This is the judgment of the High Court of Justice, Somanya, delivered on the 31st of July, 2024. Rev. John Korley (Plaintiff) sued Seth Kojo Narh (1st Defendant) and Ersco Ventures Limited (2nd Defendant) jointly and severally, claiming general damages of GH¢100,000.00 with interest at the current Commercial Bank Rate and special damages of GH¢700,000.00 for the loss of his right leg and earnings due to an accident on 8th March, 2017. 1 FACTS OF THE CASE The Plaintiff, a reverend minister, purchased bags of cement from the 2nd Defendant, who agreed to transport the cement to Akorley, Somanya. The 1st Defendant, an employee of the 2nd Defendant, drove a Kia Bongo vehicle (Registration Number AS 2695-Z) to deliver the cement with the Plaintiff and another passenger on board. The Plaintiff claims that the 1st Defendant drove recklessly, despite being caution by the passengers. The vehicle hit a pothole, causing the shaft to disengage and subsequently hit a mango tree and ended up in a ditch. The Plaintiff sustained severe injuries, including a fracture that led to the amputation of his right leg. A Police Accident Report indicated that the 1st Defendant who was prosecution, convicted and sentenced the careless driving caused the said accident through his negligence. The vehicle was examined after the accident and found to be in good condition before the accident. The Plaintiff avers that the 2nd Defendant is vicariously liable for the 1st Defendant’s actions. DEFENDANT’S RESPONSE The 1st Defendant claimed the accident was due to a mechanical fault and that he was misled by the police into admitting guilt. He denied being negligent or careless. The 2nd Defendant argued that the vehicle was a goods vehicle not meant for passengers and that the boarding of the Plaintiff and his brother in the vehicle caused same to be overloaded, thereby causing the accident. They claimed that the 1st Defendant was not acting within the scope of his employment and thus, the 2nd Defendant could not be held vicariously liable. 2 ISSUES FOR DETERMINATION 1. Whether the 1st Defendant was negligent in causing the accident. 2. Whether the 2nd Defendant is vicariously liable for the acts of the 1st Defendant. 3. Whether the Plaintiff is entitled to the damages claimed. LEGAL ANALYSIS Burden of Proof Under section 10 of the Evidence Act of Ghana, 1975 (NRCD 323), the burden of persuasion rests on the Plaintiff to prove, on the balance of probabilities, that the 1st Defendant’s negligence cause the accident and the resulting injuries and that the 2nd Defendant is vicariously liable for the said acts of the 1st Defendant. Negligence of the 1st defendant The Plaintiff provided evidence, including a Police Accident Report (Exhibit D) and a Judgment from the District Court (Exhibit E), indicating that the 1st Defendant drove carelessly. The Report and Judgment are substantial evidence that the 1st Defendant was negligent. The 1st Defendant’s defence of mechanical fault is not supported by any substantial evidence or expert testimony. The vehicle in question was examined after the accident and was found to have been in good condition before the accident as per Exhibit “D”. In the case of ASANTE V. GIHOC DISTILLERIES CO. LTD. [2014] 45 MLRG 27, it was held that a Defendant who fails to rebut credible evidence of negligence with substantial proof cannot escape liability. 3 Vicarious Liability of the 2nd Defendant Accordingly, to Section 11 of the Labour Act, 2003 (Act 651), an employer is vicariously liable for the actions of an employee if the actions were within the scope of employment. The 2nd Defendant’s instruction to the 1st Defendant to deliver the cement was within the scope of his employment. Despite the 2nd Defendant’s argument regarding the prohibition of carrying passengers, the Plaintiff was engaged in a transaction with the 2nd Defendant, making the transportation an implied term of the transaction. Thus, the 2nd Defendant is vicariously liable for the 1st Defendant’s negligent actions. The principle in MORGANS V. LAUNCHBURY [1972] 2 ALL ER 606 (UK) supports the vicarious liability of an employer for acts done by an employee in the court of employment, even if the employee deviates from strict instructions, provided the act is connected to the employer’s business. Plaintiff’s Actions and Contributory Negligence The phrase “the act of the Plaintiff was the main cause of the accident” suggests that the Plaintiff’s actions were primarily responsible for the action in question. This assertion could be part of a defense argument in a personal injury or property damage case, where the Defendant is attempting to shift liability away from themselves and onto the Plaintiff. To make this argument effectively, the defense would need to provide evidence showing that the Plaintiff’s actions directly led to the accident. This could involve eyewitness testimony where witnesses saw the Plaintiff’s actions leading up to the accident, expert testimony who can reconstruct the accident and demonstrate how the Plaintiff’s actions were the primary cause, surveillance footage: where there is video evidence showing the Plaintiff’s actions or physical evidence where any tangible evidence that supports the claim, such as damage patterns or skid marks. 4 The 2nd Defendant’s claim that the Plaintiff contributed to the accident by overloading the vehicle is noted. However, the primary cause of the accident was the 1st Defendant’s reckless driving, as indicated by the Police Accident Report and the District Court’s Judgment. The Plaintiff’s presence in the vehicle, even if it contributed to the vehicle’s instability, does not outweigh the 1st Defendant’s duty to drive with due care. In DONOGHUE V. STEVENSON [1932] AC 562 (UK), it was established that the duty of care lies with the person who has control over the circumstances leading to harm. Here, the 1st Defendant had control over the vehicle and thus owed a duty of care to the passengers. Damages The Plaintiff seeks both general and special damages. General damages compensate for non- monetary losses such as pain and suffering, while special damages cover specific monetary losses. The Plaintiff’s severe injuries, including the amputation of his right leg, justify an award for general damages. The evidence of medical expenses and loss of earnings substantiates the claim for special damages. The Plaintiff has provided Medical Reports and Receipts (Exhibit “B” & “C”) demonstrating the severity of the injuries and the financial impact. The amputation of the Plaintiff’s right leg and subsequent disability justify the claim for general damages. The Plaintiff’s inability to work and loss of earnings justify the claim for special damages. The case of ADJEI V. NATIONAL INVESTMENT BANK [1986-87] 1 GLR 445 establishes that a Plaintiff can claim for loss of future earnings when it is clear that the injury sustained has incapacitated them from performing their job. 5 CONCLUSION The Plaintiff has discharged the burden of persuasion, proving on a balance of probabilities that the 1st Defendant was negligent, and the 2nd Defendant is vicariously liable for the Plaintiff’s injuries and losses. JUDGMENT The Court finds in favour of the Plaintiff and Order as follows: 1. The Defendants are jointly and severally liable to pay the Plaintiff general damages of GH¢100,000.00 with interest at the current Commercial Bank Rate from the date of the accident until the date of final payment. 2. The Defendants are jointly and severally liable to pay the Plaintiff special damages of GH¢700,000.00 for the loss of the Plaintiff’s right leg and earnings from the date of the action until the date of final payment. COSTS The Defendants are also to bear the costs of this action. Costs of GH¢10,000.00 are awarded against the Defendants to the Plaintiff. So ordered. (SGD) MARIAM SALEH SINARE (MS.) (JUSTICE OF THE HIGH COURT) D.O-A. 6