Aidoo Vrs Dzaneni & Another [2022] GHAHC 92 (14 November 2022)

P a g e | 1 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON MONDAY 14 NOVEMBER 2022 BEFORE JUSTICE GEORGE BUADI, J SUIT NO. E8/01/2021 RICHMOND JOSHUA AIDOO } …… PLAINTIFF Versus BLEWUSI K. DZANENI (a.k.a Bleinusi K. Dzaneni EMMANUEL AGBO } } ……. } 1ST DEFENDANT 2ND ……. DEFENDANT JUDGMENT Background Plaintiff had been and is still an auditor with the Ghana Audit Service presently at Ho. On 7 February 2018, he was involved in a motor accident between Tsito Township and Kporvi Police Check Point along the Accra-Kpando Road whilst travelling in a commercial Toyota Hiace vehicle GT 8207-09 that belongs to 1st Defendant and driven at the material time by 2nd defendant. Plaintiff avers that 2nd Defendant poorly managed and controlled the vehicle that led to a summersault. He contends that the accident was due to 2nd Defendant’s negligence. Claiming to have badly suffered injuries as a result of the accident with prolonged hospitalization with associated losses, Plaintiff on February 1, 2021, by a writ of summons commenced this action. Later, on 30 September 2021, pursuant to the joinder of 2nd Defendant, Plaintiff amended the writ, claiming the following reliefs against Defendants herein: 1 | P a g e P a g e | 2 For General Damages for the most serious pains, suffering and injuries suffered and sustained by Plaintiff in a motor accident involving vehicle: Toyota Hiace Commercial Bus bearing Registration No. GT 8207-09, property of 1st Defendant in which vehicle the Plaintiff was travelling as a fare-paying passenger, and which accident occurred between Tsito Township and Kporvi Police Checkpoint while travelling on the Accra- Kpando road and which accident was caused by the negligent, careless, and or reckless driving of 2nd Defendant as the driver who was at the material time of the accident the driver, agent, employee, worker of 1st Defendant and in the course of his activities and or duties as such driver, agent, employee and or servant of 1st Defendant and for which accident 1st Defendant is vicariously liable to Plaintiff and 2nd Defendant is liable to the Plaintiff for damages. Parties’ statements of case Plaintiff’s case is that on the fateful day of the accident 7 February 2018, 2nd Defendant drove 1st Defendant’s vehicle GT 8207-09 without due care and attention; without due regard for human life at a speed that was excessive and unreasonable in the circumstances; failed to regularly maintain the vehicle and or its constituent parts; indeed, relying alternatively on the plea of res ipsa loquitor. Plaintiff recited particulars of injuries that he had suffered arising from the accident as - laceration of the right parietal scalp; laceration of the left supraorbital region; traumatic right shoulder dislocation; and severe neck pains that were initially managed at the Regional Hospital Ho, later at the 37 Military Hospital, 2 | P a g e P a g e | 3 Accra, where a further clinical and radiological evaluation showed a partial tear of the rotator cuff of the right shoulder joint, subsequently managed with analgesics and physiotherapy, and ultimately at the Korle Bu Teaching Hospital, (KBTH) Accra on complaints of a painful stiff right shoulder; scar on the right parietal area of his scalp; scar on the left supraorbital area; anxiety, especially on approaching moving vehicles; nightmares; sexual impotence and genital numbness; and chronic low back pain with radiculopathy. Following the injuries, Plaintiff says he is now faced with the following complications: rotator cuff arthropathy of the right shoulder joint; post-traumatic osteoarthritis of the right shoulder joint; post-traumatic stress disorder; impotence; chronic low back pain from early lumbosacral degenerative disease radiculopathy whose treatment requires the use of analgesics, the prolonged use of which has its attendant unwanted risks of side effects. Plaintiff avers that, currently, he continues to experience severe pains after sitting or standing for just a couple of minutes, and takes an unreasonable long time for him to straighten himself up; unable to receive and control cell phone calls with his right hand; unable to lift moderate to heavy things nor rotate his right hand; unable to wash his clothes, and that bathing has become a nightmare experience. Plaintiff continues that he experiences severe pains in his chest and ribs and his mouth as there are cracks in his teeth; occasional sharp burns and pains in his scalp and fits of shock that are triggered upon approaching vehicles; nightmares, including, experiences of a noisy and painful shift in his knee when he goes down on his knees or squat. 3 | P a g e P a g e | 4 Plaintiff states further that he cannot dance, walk, play football, or any game involving physical exertion, exercise himself or return to his hobby or recreational activities to maintain the health and soundness of his body that he was hitherto used to. He avers further that he is now on physiotherapy and intermittent epidural steroid injections with uncomfortable side effects and that he needs to undergo a spine surgery but that has to wait because he presently lacks the resources, with apprehension that his condition may deteriorate or degenerate with the continued inability to undergo the needed surgery. Plaintiff states that his percentage disability as of 8 January 2020 stood at 75.5% and that he had become almost a human vegetable unable to do much for himself and thus reliant on his dependent children. Plaintiff states further that after the accident, his salary was blocked and it took the management of his employer - Audit Service - about seven months to reinstate him. All the same, Plaintiff claims that an amount of over GH¢10,000 which is equal to his two months' salary remains unpaid. Plaintiff adds that he had to take excuse duties to attend medical reviews which are likely to adversely affect him in job training sessions, workshops, and official trek allowances. Plaintiff further states that the accident had affected his mood, as he is oftentimes quiet and moody, depressed, and sometimes talking to himself which has diminished his self-esteem and public image. He adds that the accident had rendered him incapable of attending social functions and other communal activities he was hitherto used to. Plaintiff prays the court therefore for an award of damages against 2nd Defendant, and vicariously against 1st Defendant as the owner of the truck for compensation, including loss of reasonable expectation of life, pecuniary benefits for the 4 | P a g e P a g e | 5 continuance of life, loss of amenities of life, income, and expenses on medicals and hospital, food, transportation, and other expenses including herbal treatment. Except for the charge of negligence, and the nature and extent or degrees of body injuries, with respect particularly to the percentage disability that Plaintiff claims to have suffered from the accident, Defendants largely admit the crux of Plaintiff’s case. They do not deny the occurrence of the accident; neither do they deny that 1st Defendant was the owner of the vehicle under whose permission 2nd Defendant was driving or drove the vehicle at the material time of the accident. Defendants deny however that 2nd Defendant was negligent, or that the accident took place due to his negligence. They contend that 2nd Defendant was qualified to drive the vehicle and that at the material time of the accident, the vehicle had a valid motor insurance policy as well as a roadworthiness certificate from the Driver & Vehicle Licensing Authority (DVLA). Defendants contend that the accident took place as a result of the sudden burst of the rear offside tyre of the vehicle and that 2nd Defendant did everything possible and professionally required to save the situation. Defendants want the court to dismiss Plaintiff’s claim, averring that they had no intention to harm passengers on board or anybody at all material time of the accident. Issues settled for trial and directives for trial At the close of pleadings, the court set down the following issues for the trial: Whether or not the [2nd] Defendant was negligent. 5 | P a g e P a g e | 6 Whether or not Res Ipsa loquitor is applicable in this case and the Plaintiff can rely on it. Whether or not [1st] Defendant is vicariously liable. Whether or not the Plaintiff is entitled to Damages and or 4 compensation. The evidence, finding of facts and the law applicable Plaintiff’s case is contained in the witness statement he filed on 20 January 2022: a 65-page document that comprises a 12-page 47-paragraph statement; the remaining 53 pages are all exhibits - Exhibits A - H. Plaintiff’s sole witness is the medical doctor, Dr Angbor Asare (Senior Specialist, Trauma and Orthopedic Unit), Accident Center of KBTH, Accra who upon referral attended to him. Concerning Defendants, 1st Defendant’s testimony is per a 2-page 13-paragraph witness statement, whilst that of 2nd Defendant is also per a 2-page 12-paragraph witness statement. They did not call any other witness. I take notice that Defendants tendered Exhibit J through Plaintiff under cross-examination. The core duty of a trial court is to find primary facts. The law, indeed is that, when a trial court correctly identifies and states its findings of primary facts, the court is inevitably on a smooth path with clarity of focus to find and correctly apply the relevant law. Quaye v Mariamu [1962] GLR 93, 95 SC. I set off first, to identify, indeed reiterate first the primary facts that are not in dispute; facts that were not denied but admitted on the pleadings; and secondly, facts the court deems to have been admitted at the cross-examination for which the law does not require any further need for proof. See Fori vs Ayirebi & Ors [1966] GLR 627; Bank of West Africa Ltd vs Ackun [1963] 1 GLR 176 SC. See also Kusi & Kusi vs Bonsu [2010] SCGLR 60. 6 | P a g e P a g e | 7 Based on the pleadings, I find that Defendants do not deny that the accident took place. Neither do they deny the identity of the vehicle - a Toyota Hiace GT 8207- 09 commercial vehicle - that belongs to 1st Defendant, which indeed he admits as the owner. Defendants do not deny either, that the vehicle was being driven by 2nd Defendant at the material time and that 2nd Defendant was within the employ of 1st Defendant, the owner of the vehicle. Defendants do not also deny Plaintiff’s claim that he was together with other fee-paying passengers on board the vehicle when the accident happened and that Plaintiff suffered degrees of injuries as a result of the accident, which I find had been recited in the Police Accident Report, Exh. F. Defendants, however, deny the charge of negligence and liability for injuries arising therefrom, contending that the accident occurred as a result of the vehicle’s rear offside tire burst and that they had no intention to harm any passenger on board the vehicle. Indeed, Exhibit F1 states that seven passengers including the Plaintiff suffered body injuries. Exhibit F alludes to portions of the medical officer’s report concerning the injuries that Plaintiff, in particular, suffered, thus: [Plaintiff] was treated by Dr Gideon Abusa, a Senior Medical Officer [at] Ho Regional Hospital. [Plaintiff] was bleeding from the scalp laceration, shoulder pain, general bodily pain, and headache. On examination (1) Right shoulder dislocation (2) Head injury with scalp laceration due to road traffic accident. He was treated and discharged but later transferred to 37 Military Hospital for further treatment. The Police Accident Report 7 | P a g e P a g e | 8 Under cross-examination, Plaintiff stated that: The driver was speeding. The speed was unreasonable. I believe the driver was reckless with regard to human life and failed to consider the nature of the road as the road was full of potholes. At a point in time in the cause of the journey, the driver would get down and inspect the tires. We [the passengers] were wondering as to what was wrong but the driver did not say anything. I was suspecting that the driver failed to maintain the vehicle properly including the tires. Apart from personal body injuries of the passengers in general, and of the Plaintiff in particular as recounted by the Police, the report (Exhibit F) also described the condition of the vehicle and the resultant damages arising from the accident, thus: Both windscreens smashed; roof panel buckled; [the] main door buckled and glass smashed, both front doors dented and glass smashed, both side panels dented; both window glasses smashed, boot dented; offside headlight [was] broken; rear offside tire burst. Defendants contend nonetheless that they were not negligent, and that as per Exhibit F, the Police “took no action, did not prosecute the driver, and closed the docket’ as “accidental”. The burden of proof, that is, the burden of producing evidence and the burden of persuasion in a case is not necessarily borne at all times by a plaintiff in a suit but 8 | P a g e P a g e | 9 is determined largely by the nature of the pleadings and the resultant issues the court set down for the trial, and that “… depending upon the pleadings … the evidential burden can move on to a defendant … that can result in the right, in fact, [the duty] to open and provide the requisite proof of the case shifting to the defendant”. Sumaila Bielbiel (No.3) v Adamu Dramani & Attorney-General [2012] SCGLR 370. Evidence Act, 1975, NRCD 323, ss. 11(1), 11(4), 14, 15(1), and 17. The law requires further that matters that are capable of proof must be proven by producing evidence so that on all the evidence available, a reasonable mind could conclude that the existence of the fact is more reasonably probable than its non- existence. Ackah v Pergah Transport Ltd [2010] SCGLR 728. Indeed, per the Evidence Act, id s. 17 (a) the burden of producing evidence always lies upon the party who would lose if no evidence is led on the issue and where some evidence has been led if no further evidence is led in response. By the pleadings, my view is that the evidential burden of proof does not rest on Plaintiff, but swings unto Defendants to provide evidence that rebuts the charge of negligence and the particulars thereof that Plaintiff ascribes to 2nd Defendant's careless driving along the potholed road amidst claims that he was persistently stopping the vehicle along the route to check the tyres of the vehicle. Defendants failed here. 2nd Defendant as the driver failed to provide his version of what transpired on the road that day in question to rebut or explain away Plaintiff’s evidence that he was speeding and was also persistently stopping the vehicle for purposes of checking the tires of the vehicle in particular. For purposes of rebuttal, Defendants could have called one of the passengers on board the vehicle that fateful day to provide evidence as to the conduct of the 9 | P a g e P a g e | 10 driver 2nd Defendant, whether or not he was in fact speeding, as well as the veracity of Plaintiff’s claims that 2nd Defendant was persistently stopping the vehicle to check on the tires and the vehicle. Both Defendants, particularly 2nd Defendant failed in discharging this evidential duty. I cannot wholly rely on Exhibit F nor vouch for its credibility to ascribe the accident as “accidental”. This is because, among other reasons, the author of Exhibit F was not on board the vehicle that day to confirm and vouch for or add credence that the incident was not a result of the driver’s negligence but simply accidental. Besides, Defendants failed to invite or compel the attendance of the author of the Accident Report (Exhibit F) to testify on the issue or matter to be cross-examined on his/her findings and conclusions, indeed on the reason/s he/she closed the Case Docket as “accidental”. Not only did the Defendants fail to call any of these persons whose testimonies I deem to be material on the issue, but they also failed to tell the court the reason/s for their default or inability to call such a witness or witnesses. The law mandates that Defendants suffer for such a default. See Evidence Act id. S.11 (1); Owusu v Tabiri [1987-88] 1 GLR 287. A claim that had been denied needs further proof or needs to be subjected to cross-examination, else it cannot amount to a credible piece of evidence to decide an issue or claim in court. Besides, Defendants provided no proof that the vehicle and its constituent parts including the tyres were regularly or routinely maintained. There was no piece of evidence of routine services/maintenance history of the vehicle. Roadworthiness certificates issued by the DVLA are not meant as mechanical proof of the safe condition of the vehicle on our roads. DVLA certificates are for purposes largely of revenue generation and not necessarily as mechanical proof of the roadworthiness of vehicles at any point in time. 10 | P a g e P a g e | 11 Respectfully, I am not inclined to accept Defendants’ counsel’s suggestion that the constant stoppages of the vehicle by 2nd Defendant to check on the tyres of the vehicle are evidence of his diligence and duty of care. That, in itself, in my view, is an admission of Plaintiff’s claim that 2nd Defendant was indeed persistently stopping and checking the tyres along the route. It also suggests, in my view, that something was not right with the tyres and the vehicle as a whole. My view is that Plaintiff’s evidence and particulars of negligence, in the face of Defendants non- denial, or lack of rebuttal evidence2 raises a veritable case of presumption of negligence to lie against 2nd Defendant that by law places the onus of disproving the allegation upon Defendants but Defendants failed to discharge the evidential burden of displacing the presumption of negligence. Indeed, in rebutting the presumption of negligence, Defendants could have led evidence, including the routine service maintenance history of the vehicle to show that the vehicle had been subjected to routine or regular maintenance, raising on the other hand a presumption that the vehicle, possibly, was in a safe and good roadworthy condition at the time of the accident. Such evidence would have further raised a presumption that Defendants have been hitherto discharging their duty of care and skill as common carriers in detecting and remedying any hidden or latent defects as was held in Kesiwah v Jaja [1976] 2 GLR 280, CA; Aboaku v Tetteh [1962] 2 GLR 165 SC; and Asante Kramo (alias) Kuma v Att-General [1975] 1 GLR 319. It was not the case of Defendants that there was a latent defect that could not be discovered by the exercise of reasonable care and skill. Neither was it their case of having undertaken regular or routine maintenance and servicing of the vehicle, or Against the claim of speeding and constant stoppages of the vehicle for tyre-checks 11 | P a g e P a g e | 12 any steps taken by them as common carriers to render the vehicle and its tyre safe for carrying persons. As was recited in Halsbury’s Laws of England (3rd ed)3 the duty of a common carrier is to: Take all due care, and to carry safely as far as reasonable care and forethought can attain that end . . . The obligation upon carriers of persons is to use all due, proper, and reasonable care, and [that] the care required is of a very high degree … Carriers of passengers are answerable for the soundness and sufficiency of their vehicles, and are liable for any defect which careful and reasonable examination would [have] reveal[ed] … Periodical testing and examination is a duty, and the fact that a vehicle breaks down is prima facie evidence of negligence Further to this, Charlesworth on Negligence (4th ed.) at pp. 264-265 provides that: The duty to exercise reasonable care involves the making of a reasonable examination of the vehicle from time to time in accordance with the practice of reasonably careful carriers. The breakdown of [a] vehicle is evidence of negligence on the part of the carrier, throwing upon him the burden of showing that he exercised reasonable care and skill in detecting and remedying defects. The facts and circumstances in this case, in my view, point to an inference of negligence from which the doctrine of res ipsa loquitur applies. The law is that it is Vol. 4 at pp. 174-175, paras. 445 and 447 12 | P a g e P a g e | 13 not enough for the res to speak; it must speak with the voice of negligence for the doctrine of res ipsa loquitur to apply. Brown v. Saltpond Ceramics Ltd [1979] GLR 409 CA. As Lord Shaw put it in Ballard v. North British Railway Co. [1923] SC (HL) 43 at p. 56 … [R]es ipsa loquitur after all means that the thing that had happened, the subject-matter of the plaintiff's complaint "tells its own story." In other words, it thus means merely that the thing speaks for itself. What is it that speaks for itself? It is the facts and circumstances of the case taken together that figuratively speak of negligence. Indeed, in the normal course of road events, one expects a routinely-maintained vehicle being driven on the road to stay on the road with its tyres firm, well- secured and balanced. On the face of lack of evidence other than the police report that had clothed the incident as “accidental’ on grounds of the “rear offside tire burst” claim, my view is that Defendants failed to displace my holding of presumption of negligence against Defendants, particularly in the light of what I deem as an admission by 2nd Defendant that he was persistently stopping along the route to check the tyres and the vehicle. I reiterate that a holding by the court of presumption of negligence, indeed, reps ipsa loquitor, places the onus of disproving the negligence upon Defendants. In Barkway v South Wales Transport Co., Ltd. [1950] 1 All E. R. 392, HL, a tyre- burst was held up by the Defendants in the suit as defence to the charge of negligence but the court held that the tyre burst without more was an insufficient explanation in law for an exoneration, as the mere happening of an accident without a very good explanation is prima facie evidence that it was the result of want of due care on the 13 | P a g e P a g e | 14 part of Defendant. Aboaku v Tetteh id. I hold that Defendants were negligent under the circumstances, as they failed to provide the rebuttal evidence against the presumption of negligence that the facts of the case speak to. On the issue of ‘whether or not 1st Defendant is vicariously liable’, I reiterate my primary findings, indeed, admissions of 1st Defendant of the identity of the vehicle Toyota Hiace GT 8207-09 as his vehicle, for which he admits to having engaged 2nd Defendant as the driver, and that 2nd Defendant was at the material time of the accident driving the vehicle within the hours or period of his employment. The case law, as espoused in Ansah v Boye and West & South African Mines Ltd. [1956] 1 WLR 219 at page 226 and also Mensah v Dabanka [1962] 2 GLR 178 SC is that: A master, [or truck owner] must not lightly be exonerated from liability. He selects his lorry driver and places him in charge of [a] mechanism which can become the instrument of destruction in the control of an unskilled or negligent servant engaged in the master’s business but the servant must be at the time on the master’s business. Besides, as was stated in Dubai Aluminium Co. Ltd v Salam [2002] 3 WLR 1913: The undying policy [of vicarious liability] is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risks that others will be harmed by wrongful acts through the business is carried on, [and that’ when those risks ripen into a loss, it is just [and fair] that the business should be responsible for compensating the person who has been wronged. 14 | P a g e P a g e | 15 Whilst agreeing to the universal principle of vicarious liability, learned counsel for Defendants sought to raise a hedge to its application to this case. In his written address, counsel admitted the fact of the accident and the resultant injuries to the Plaintiff, conceding further that “the Plaintiff is entitled to some compensation”4, but added curiously that “in running down cases, the responsibility to compensate the [plaintiff] should not be borne by Defendants”. His reason is that Defendants have satisfied the requirements of the Motor Traffic Act, 2004 (Act 683) s. 54; that is:  2nd Defendant has the requisite license to drive that range of vehicle;  The vehicle has a pass from the DVLA to be driven on the road; and  The vehicle is insured by an insurance company; In effect, according to counsel, the responsibility of payment of compensation to the victim plaintiff is shifted to the insurer company – Star Assurance Co. Ltd.5 Respectfully, learned counsel is wrong in that he grossly misconceived the common law principle of vicarious liability in that satisfaction of statutory demands of the Motor Traffic Act, id by acquiring a driver’s license, a road pass from the DVLA, as well as an insurance cover for one’s vehicle does not absolve one from liability arising from an accident involving the vehicle on the road resulting in injuries and damages to other persons and road users. With ease and equanimity of mind, I hold 1st Defendant vicariously liable for the accident involving his vehicle driven at the material time by his agent 2nd Defendant and the injuries of Plaintiff. 5 See page 6 of the written address filed on 4 Nov 2022. As n6 above. 15 | P a g e P a g e | 16 Concerning the issue of ‘whether or not Plaintiff is entitled to damages and or compensation, the law is certain that when negligence is established and upheld by the court, damages are at large, as there cannot be any proven wrong, harm or injury without a judicial remedy. I reiterate that Defendants have conceded that “Plaintiff is entitled to some compensation”. I hold therefore that the compensation payable to Plaintiff for his injuries shall be borne by both Defendants. The task of assessing general damages award for personal injuries has not been an easy task for the court whether the award is made in the form of a cumulative lump sum, or on separate headings of damages. The consensus however is that the final award must so far as money can compensate the injured party be a reparation for the wrongful act as well all the natural and direct consequences of the wrongful act. Quarcoo v Appiah [1972] 2 GLR 30 (Holding 2). Indeed, as was held in Boateng v Oliver [2013-15] 2 GLR 729 CA, the award must be assessed “to put [the victim] in the position he should have been in had the loss not occurred”. The general objective is to provide what will be accepted generally as adequate, fair, and reasonable compensation for the loss arising out of the injury whether as a lump sum award or under various heads. Twum v Okyiri; Twum v Amfo (Consolidated) 1975 2 GLR 424 CA; See also Kwadwo Appiah v Kwabena Anane [2020] 160 GML 1 SC. The duty, thus, is on a plaintiff to show that what he has suffered as damage or loss. Physical injuries that Plaintiff claims to have suffered as a result of the accident were not denied by Defendants. The Accident Report (Exhibit F) confirms the nature and degree of the injuries, corroborated further by the testimony of the attending medical officer CW1 Dr Amgbo Asare of KBTH, Accra per his medical 16 | P a g e P a g e | 17 report Exhibit E. I did not find Defendant denying or contesting the physical injuries. However, they contest the 75.5% permanent incapacity/disability that Dr Amgbo Asare assigned to the Plaintiff in the report – Exhibit F. I find that the Plaintiff was admitted initially at the Ho Regional Hospital, then 37 Military Hospital, and then upon a referral at the Trauma & Orthopaedics Unit, KTBH, Accra under the medical team neurosurgeons led by Dr Amgbo Asare, a Senior Specialist, who testified before the court upon subpoena. Dr Asare stated that he saw Plaintiff on February 2019 at the KBTH as a case of emergency referral patient with multiple injuries from the 37 Military Hospital for management. The medical report - Exhibit E is dated 8 January 2020. Dr Asare’s oral evidence in court was supported by his Exhibit E, which I find corroborates the nature and extent of Plaintiff’s physical injuries that are recited not only in Plaintiff’s 63-page witness statement but also in the Accident Report Exhibit F except that Exhibit E gave a much more vivid nature and medical description of Plaintiff’s injuries. The medical report (Exhibit E) captures the history of Plaintiff’s treatment, titled ‘Preamble’. It also reports on the situational condition of Plaintiff titled ‘Problems’, then ‘Prognosis’, and also ‘Estimation of Disability’ of Plaintiff. I am afraid I cannot capture the medical details of Exhibit E in this judgement but I can find that both in Exhibit E, as well as his oral testimony, the attending medical officer CW1, gave a vivid and what I deem as a quite disturbing description of plaintiff’s injuries and his present health condition. The Medical Report - Exhibit E - recounts much more medical details on Plaintiff’s injuries in the Accident Report - Exhibit F. Dr Asare stated that Plaintiff was first seen at KBTH on 6 February 2019, having suffered road accident injuries on 7 February 2018 of “[l]aceration of the right parietal scalp; 17 | P a g e P a g e | 18 [l]aceration of the left supraorbital region; [t]raumatic right shoulder dislocation; and [s]evere neck pains. Dr Asare stated also that “[c]onsequent to the injuries sustained, [the Plaintiff] is faced with the following complications: 2 4 Rotator Cuff Arthropathy of the right shoulder joint Post-traumatic osteoarthritis of the right shoulder joint Post-traumatic Stress Disorder. Impotence Chronic low back pain from early lumbosacral degenerative disease with radiculopathy. According to Dr Asare, “[a]ll the factors above listed adversely affect” Plaintiff’s a Quickness and nimbleness of right shoulder action, resulting in delayed motions b Coordination of the right upper limb in elevation and abduction involving overhead activities, as well as steadiness of step and gait. c Strenght of grip and fist-making ability, striking, slapping, holding and pushing power of the right upper limb; and weight-bearing in the lower limbs and power of action in standing, walking, bending forwards, running and jumping. This leads to awkwardness and clumsiness in specific actions d Security or reliability of [the] use of the right upper limb involving actions in lifelong habitual and technical accomplishments. 18 | P a g e P a g e | 19 e Ease of performing specific functions associated with activities of daily living. f endurance of gripping power of fingers, and tolerance of continuous actions. g Weakness in lifting power in the right upper limb. Dr Asare explained some of the medical terms of Plaintiff’s condition that include ‘Insecurity’, ‘Weakness’, ‘Awkwardness’, ‘Delayed Action’, ‘Increased Risks’ ‘Diminished Endurance’, and Estimate of Disability’. I find Exhibit D series as the clearer original copies of X-rays and MRI scan reports on Plaintiff. I find some of the pictures of Plaintiff in the admission ward quite disturbing. In Exhibit B, B1, B2, B3 & B4, Plaintiff ‘floats’ in an ether of white hospital bedsheets, neck-cuffed, with head wholly bandaged, as well as bandages covering the right shoulder and upper midsection, lying, sitting, and being strolled in a wheelchair. Dr Asare (CW1) assigns Plaintiff with 75.5% disability at the conclusion part of his report Exhibit E, stating that “[t]he level of disability that this patient suffers is likely to affect his overall livelihood and that prolonged and expensive treatment modalities he requires are also likely to be challenging to surmount”. Dr Asare explained under the sub-theme “Prognosis” in Exhibit E that further surgery might be crucial for Plaintiff. On page 3 paragraph 1 of Exh E, Dr Asare explained that: Rotator Cuff Arthropathy tends to be a progressive condition causing decreased range of motion of the affected (right) shoulder joint function when not appropriately managed. It may lead to deformity and eventual instability of the shoulder joint, and recurrent dislocations. Treatment is 19 | P a g e P a g e | 20 challenging and costly especially when conservative management fails, and surgery is required. He will need a protracted period of physiotherapy and prolonged use of analgesics with its attendant risks of unwanted side effects. At the trial, Dr Asare explained what he meant by the above statement, thus: I mean to say surgery might be [necessary] if he develops significant disability from the arthropathy and management do not work. Analgesics are pain killers. Unwanted side effects are kidney damage, liver damage and stomach. Treatment is challenging and costly, because, the patient shall have to do a prolonged period of physiotherapy. If that does not work, and the arthropathy worsens, then we would have to do a shoulder replacement. That is the surgery I am referring to. If that placement too does not work, then we have to surgically fuse the joint so that there is no pain from the movement. … Still, on page 4 under paragraph 5(c), epidural steroids are injected into the lumber region of the spine [to relieve] pains. The surgeries, either shoulder and/or spine hover around a conservative combined fee of GH¢150,000 cedis and [can] possibly [be] done here in Korle-Bu Teaching Hospital. Besides Exhibit E, there is another medical report on Plaintiff tendered as Exhibit J through Plaintiff under cross-examination. It was prepared earlier by Dr Holdbrook-Smith. Though, Plaintiff’s lawyer objected to its admission, I overruled the objection on grounds of relevance under the Evidence Act, s. 52. I abide by the 20 | P a g e P a g e | 21 ruling and the reason/s assigned thereto. Whilst Exhibit J was prepared and written under the diagnosis personally of Dr H. A. Holdbrook-Smith on 8 November 2018, Exhibit E was written by Dr Asare under the diagnosis team of neurosurgeons at the Trauma & Orthopaedics Unit at the same KBTH, Accra on 8 January 2020. Whilst the earlier prepared Exhibit J concluded that “[Plaintiff] permanent disability from the injuries is estimated at 18% and permanent incapacity at 27%”, the latter-prepared medical report on Plaintiff Exhibit E put it at 75.5%. Whilst Exhibit J is a bare 2-page document, Exhibit E is a detailed 5-page document that provided a detailed diagnosis and prognosis of the Plaintiff. Besides, the time of the complaints and the nature of complaints lodged by Plaintiff that culminated in the production of the medical reports are different. In essence, the nature, details, and percentages of disability, cannot in my view be expected to be the same. Based on what Defendants perceive as percentage disability differentials in the two medical reports, they brought an application after the close of Plaintiff’s case for an order of the court for an ‘independent medical report’ on Plaintiff. I did not find favour with the application. I dismissed it. I stand by the reasons I gave in the ruling on 19 May 2022, on the matter, which I deem important to reproduce here: I have listened to the submission of the lawyers based mainly on the respective affidavits. The summary and gist of Applicant’s lawyer’s submission … is that the two reports, medical reports on Plaintiff – Exhibit [J] and Exhibit E, that is, the permanent degrees of disability of Plaintiff are different in the two reports. The earlier one gave a permanent disability estimate of 18% and permanent incapacity of 27% whilst the latter report 21 | P a g e P a g e | 22 Exhibit E gave permanent incapacity as 75.5% encompassing all medical variables. The variation seems to be the worry or concern of … Defendants, indeed, [that has been] largely the crucible of his cross-examination of the attending medical officer. Learned counsel for Plaintiff, with respect, appeared to be having some difficulty explaining the variation. But to me, the explanation [was] given by the medical officer in his evidence in chief and particularly under cross- examination. Simply, the reports were not issued contemporaneously but [were] issued at different periods of the patient’s (Plaintiff) care at the facility. Learned counsel does not appreciate, indeed, doubt the increase in incapacity percentage in the late report Exhibit E, but the simple explanation deducible clearly from both reports i.e. [Exhibits J] and E is that, whilst Exhibit [J] could be termed, possibly as [an] ‘interim’ report, Exhibit E appears to be the final report on the patient after his release. Besides, the condition of the human body changes with time. It is possible for the latter report to have identified ailments and conditions which were not earlier identified, and reported on in the earlier [Exhibit J][by the attending medical doctor] Moreover, the latter report provides a detailed physical condition of the patient assigning detailed physical condition and welfare with the requisite capacity of the attending medical officer to ascribe a much better percentage of disability. Besides, whilst [Exhibit J] is ostensibly sourced from one person notwithstanding his status, the latter report, Exhibit E is a 22 | P a g e P a g e | 23 collaborative teamwork from the same medical facility, [KBTH] Accra. There is no evidence that Exhibit E was not sourced from KBTH]. In addition, the judicial value of Exhibit E cannot be compared with Exhibit J as the attending medical officer clearly in my view defended [and explained] the contents of Exhibit E” at the cross-examination. Now, [concerning the] law behind all these factual depositions, with much respect to learned Counsel for Defendants/Applicant, this is not the condition precedent for invoking Order 26 of C. I. 47 and in particular section 114 of Act 323. The reason is that there is already an expert witness in the matter, who has been amply cross-examined on his expert opinion on the matter before the court. The fact that learned counsel does not seem to agree with him on his evidence is not a legitimate ground for invoking those legal provisions. Indeed, the court does not see/find the legitimacy, as in my view, the cause variation of percentage injuries and disability have amply been explained … [so] there is no need for the call, which in my view amounts to undue delay, waste of time, indeed, needless presentation of cumulative evidence as cautioned under section 52 of Act 323 … Plaintiff’s claim is for general damages; it does not include a claim for special damages, which as the name implies require proof of not only the subject matter loss or special damage but also proof of the value claimed for that subject matter at the trial after the same had been pleaded and particularities thereof have been provided in the pleadings. See Marfo v. Adusei [1965] GLR 320, SC; Norgbey v Asante [1992] 1 GLR 506 (Holding 3). General damages, on its part, according to Lord McNaughton in Stroms Bruks Aktie Bolag v Hutchison [1905] AC 515 at 525- 23 | P a g e P a g e | 24 526, HL SC “…are such as the law will presume to be the direct natural or probable consequence of the action complained of”. Plaintiff was born on 3 April 1979; he was 38 years of age at the time of the accident on 7 February 2018. He is presently 43 years of age. He is an auditor with the Audit Service, Ho. Plaintiff agreed to the suggestion during cross-examination that he is still at post at the Audit Service as an auditor, but added that he is at post “on humanitarian grounds as I am not performing my core duties as an [a]uditor. I have graciously [been] asked to relax in one of the offices as I am unable to actively participate in the audit work”. By his medical report, Exhibit E, and in particular reference to his 75.5% disability, his employer the Audit Service is most likely, indeed justifiably under Labour Act 2003 (Act 651) s. 15(d) terminate his employment in no distant future. Section 15(d) of the Labour Act id states that “a contract of employment may be terminated …… by the employer if the worker is found on medical examination to be unfit for employment”. Plaintiff summed up what he described as his present physical condition in paragraph 33 of the Witness Statement as follows: i. I continue to experience severe pains after sitting or standing for about five (5) minutes and in the process of sitting or standing, I take an unreasonable long time for me to straighten myself up. ii I am unable to receive and control cell phone calls with my right hand. iii I am unable to lift moderate to heavy things nor am I able to rotate my right hand. 24 | P a g e P a g e | 25 iv I am unable to wash my clothes and clothing and bathing has been a nightmare experience for me. v I experience severe pain in my chest and ribs and my mouth as there are cracks in my teeth. vi I have occasional sharp burns and pains in my scalp and fits of shock triggered by approaching vehicles and nightmares. vii I further experience a noisy and painful shift in both knees anytime I squat. Exhibit G series (G1-G42) is a collation of receipts of bills payment Plaintiff attached to his witness that amounts to GH¢12,535.00 as total expenses though he claims they are not all, and that there are other more receipts of bills he naively presented to Star Assurance Company “in my quest to compensate me”. I am compelled to accept Plaintiff’s claim that he has other receipts besides Exhibit G series, as Defendants did not deny or challenge the assertion even though the lawyer for Star Assurance was dutifully present in court watching the brief. Defendants sought to limit the value on Exhibit G series. i.e. GH¢12,535.00 as the total hospital expenses that Plaintiff had incurred for the injuries. Much as I do not seem to be inclined to accept this hedge forced on Plaintiff by Defendant, so do I find it unproven, indeed lacking proof of verification of the monetary values that Plaintiff has attached to the separate headings of damages in paragraph 45 of his witness statement. They are pecuniary and non-pecuniary heads of damages; the pecuniary which includes - diminishing future earnings, food, transportation, medical expenses, hospitalization, medication, reviews, x- 25 | P a g e P a g e | 26 rays and medical reports; as well as bills for walking sticks, and crutches, photographs, police report, as well as money for herbalist treatment. The non-pecuniary damages, according to Plaintiff, are pain including pains caused at the time of the accident, pains caused in the cause of medical treatment; suffering including fright, humiliation, sadness, the embarrassment of disability, fear of the future, injuries, incapacity, disfigurement, loss of amenities of life that includes loss of sexual life, inability to play with his children and colleagues, sporting activities, attend public events and socialize, inability to sit for long hours and to walk for long distance, and inability to drive. Plaintiff had also carved a heading for mental stress and anxiety, loss of good life expectancy, and diminution in future prospects attaching a value to each that amount in total of GH¢2,073,000. I take notice that counsel in his closing submission suggested that the money values assigned to the heads are a mere guide to the court, the basis for which the court might assess the award for general damages as was held in Royal Dutch Airlines (KLM) & Anor v Farmex Ltd [1989-90] 2 GLR 632 SC (Holding 3). See also Norgbey & Anor v Asante & Anor [1992] 1 GLR 506, 508. Learned counsel for Defendant in his written address asked the court not “[to decide] in favour of Plaintiff [concerning] claims not made or reliefs not sought for, such as damages for seating and standing, sleeping and waking up, seeing a herbalist, food, morning teas …”, which, according to counsel is aimed at exploiting Defendants. Respectfully, counsel seems not only to be trivializing the issue but also seems to have misconceived the area of tort law on personal injury cases and the award for personal injuries. That is, victims are compensated, not only for their injuries but also for losses present and future including amenities of 26 | P a g e P a g e | 27 life they were used to but have been deprived of, or fear being deprived of including the natural and direct consequences of the wrongful act, which include most of the items counsel seems to be scorning at and downplaying, whether included in the writ or not, as long as the claim is for general damages as I have earlier above explained. See Quarcoo v Appiah id. Indeed, as held by the Court of Appeal in Awuku v Mamuni & Sulemana [2014 70 GMJ 144 at 169-170: … It would be exposing gross ignorance and inexperience in matters of accident cases and in their treatment and further display of insensitivity expecting evidence of pain to come from only the Plaintiff before concluding that he underwent some pain in the course of treatment. We think, he is entitled to some award for pain during the accident, during treatment and immediately thereafter. As to what must be a fair assessment compensation, both lawyers cited Kwadwo Appiah v Kwabena Anane [2020] 160 GMJ 1 SC at 22-23 where the Court through Amegatcher JSC referred to Lord Devlin in H West & Son Ltd v Shephard [1963] 2 All ER 625 at 638 on the question as to what is meant to be compensation that is fair and yet not full. Lord Devlin provided the answer: I think it means this, what would a fair-minded man, not a millionaire, but one with a sufficiency of means to discharge all his moral obligations, feel called on to do for a Plaintiff whom by his careless act he had reduced to so pitiable a condition? Let me assume for this purpose that there is normal and all the mental suffering that would go with it. It will not be a sum to 27 | P a g e P a g e | 28 plumb the depths of his contrition but one that will enable him to say that he has done whatever money can do: He has ex hypothesi already provided for all the expenses to which the Plaintiff has been put and he has replaced all the income she has lost. What more should he do so that he can hold up his head among his neighbours and say with their approval that he has done the fair thing? Learned counsel for Plaintiff also drew my attention to what used to be the judicial frugality trend in the award of damages to victims of road accidents, citing once again Kwadwo Appiah v Kwabena Anane id where the Supreme Court held in pages 11-12 that: Going down memory lane, the courts in this jurisdiction have been frugal in the award of general damages for the loss of vital organs in running down actions such as industrial injuries, medical malpractice injuries, and reckless as well as indiscipline behaviour on the roads which have led to permanent disfigurement of innocent persons. The Court however gave glimpses of the need to change the status quo and held also that: Considering the dynamism of the present world, it is about time the court become forward-looking and awarded realistic and comparable compensation to comparable injuries to adequately compensate for long- term deformity, mental torture and unimaginable losses suffered. Certainly, [the] same will give affected persons hope that the State for that 28 | P a g e P a g e | 29 matter, and the justice delivery system will not abandon them in their times of need. It will also serve as a deterrent to vehicle owners, drivers, professionals, and workers into whose care the precious lives of people are entrusted. Precisely, this is the reason at common law, exemplary, punitive or aggravated damages are awarded in appropriate cases to demonstrate the court’s disapproval of such outrageous conduct on the part of defendants. In this jurisdiction as well, damages sometimes must be used as one of the measures to fight the high rate of accidents and indiscipline on the roads. Apart from the reminder to follow the above Supreme Court case, learned counsel urged me to take notice of the present value of the local currency citing CFAO v. Thome [1966] GLR 107 at 108, holding 6 where the court over half a century ago held that “in assessing the damages the court ought to take judicial notice of the declining value of [our local currency].” I find no evidence of recklessness to warrant the award of punitive damages. However, I find myself strongly urged, indeed bound by the dictum in Kwadwo Appiah v Kwabena Anane id. Considering the facts and the generally uncontested claim of the Plaintiff as regards his injuries coupled with the general wanton brazen carelessness on our roads, the poor attitude of vehicle owners to the requisite standard maintenance of their vehicles, and lack of strict supervision of their agent drivers for strict routine maintenance of their vehicles, and that mindful of my constitutional duty to engender citizens’ belief and confidence in the judicial system and to protect them as road users, I shall in line with the Supreme Court do what I deem as justice in this case and “award realistic and 29 | P a g e P a g e | 30 comparable compensation … to adequately compensate [plaintiff] for [his] long- term deformity, mental torture and unimaginable losses suffered”. Kwadwo Appiah v Kwabena Anane id. No amount of money will be enough to compensate Plaintiff for all his injuries and loss, present and future. Having considered all factors and heads of damages that Plaintiff particularized, most of which I have found and endorsed, including in particular Plaintiff's imminent loss of employment and possible, indeed, imminent surgical operation and all its associated losses and costs respectively, including the injury, pain and suffering, loss of amenities including life expectation, and other head of non-pecuniary damages, I shall choose to avoid making an award on separate heads. I will rather opt for a lump sum award of ONE MILLION GHANA CEDIS (GH¢1,000,000.00), which I deem to be a fair and just award for Plaintiff as general damages against Defendants jointly and severally. (Sgd.) George Buadi, J. High Court (1) Ho Lawyers: Kwame Asiedu-Basoah, Esq. for Plaintiff Thomas Gblorvu, Esq. for Defendants 30 | P a g e