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SAHID JAFFA AND ANOTHER
V.
THOMAS ELIAS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
11TH DAY OF DECEMBER, 1953
APPEAL NO. 10/53
2PLR/1953/43 (WACA)
OTHER CITATION(S)
2PLR/1953/43 (WACA)
(1953) XIV WACA PP. 394-396
LEX (1953) – XIV WACA 394-396
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
SAHID JAFFA AND TAME SESAY – Appellants
AND
THOMAS ELIAS – Respondent
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ORIGINATING COURT(S)
Appeal from Supreme Court by defendants
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REPRESENTATION
C. B. Rogers Wright, with F. C. Wright — for Appellants
R. W. Beoku-Betts — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW – NEGLIGENCE:- Driver driving within scope of employment
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in civil cases – Test of intervention on damages.
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CASE SUMMARY
The respondent sued the appellants for damages for negligence and was awarded an amount as general damages and another amount as special damages. A lorry, driven by the second-named appellant and owned by the first, mounted the side walk and injured the respondent grievously: he was in hospital for months, his left leg had to be amputated, and his right leg was also injured.
In the defendants’ appeal it was urged (a) that the trial Judge erred in holding that the driver was at the time of the accident acting within the scope of his employment, and (b) that the general damages were excessive.
On (a): The driver drove the lorry to some premises to take on a load if there was one for him, viz. on his master’s business; he said that on the way back he deviated from the normal route to see a friend, whom he did not see, and also said his master had never told him the route he was to drive in. (It was on the way back that the accident occurred.)
On (b) (besides a minor point on pleading): Appellants argued that the Judge assessed general damages on wrong principles.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(a) The question whether the driver was acting within the scope of his employment was one of fact; the onus of proving that he was not so acting was on the defence; and the appellants failed to show that the Judge was not justified in his finding that the driver was so acting.
(b) It could not be said that there had been a wholly erroneous estimate of the damage suffered, nor did the judgment proceed on wrong principles.
Case cited:-
(1) Davies v. Powell Duffryn Associated Collieries, Ltd., (2) (1952) 1 All E.R. 664, House of Lords.-
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was an appeal by the defendants from a judgment of Beoku-Betts, J., by which he awarded the plaintiff £2,700 general damages and £200 12s. 0d special damages in an action for negligence.
The respondent is a shopkeeper carrying on business as such at Tiama in the Protectorate of Sierra Leone, the first appellant is the owner of the motor lorry which caused the respondent’s injuries and the second appellant is the person employed by the first appellant as driver of the vehicle.
Shortly put the facts are that on the 15th September, 1951, the respondent was walking along the side walk at the comer of Oxford and Wilberforce Streets, Freetown, when the motor vehicle in question proceeding from the direction of Wilberforce Street left the road, mounted the side walk and pinned the respondent against some iron bars which had been placed by the side of a house adjoining the side walk. As a result of the collision the respondent was in hospital over five months, injuries to his left leg were inflicted necessitating its amputation through the lower part of the thigh and his right leg was also injured.
The appellants denied negligence, pleaded inevitable accident or, alternatively, that the respondent was guilty of contributory negligence by not keeping a proper look-out and thus avoiding the accident, and alleged that the second appellant was not acting within the scope of his employment when the collision took place.
The evidence is fully discussed by the learned trial Judge in his judgment and I do not propose to recapitulate it here. It is sufficient to say that he rejected the case put forward by the appellants, found that the accident was due to the motor lorry being driven with defective brakes and gave the judgment to which I have already referred.
There was the clearest possible evidence which if accepted, as it was, justified the learned trial Judge’s finding of negligence against the appellants, and before us their counsel did not stress the complaint against that finding, but he did strongly urge firstly, that the trial Judge erred in holding that the driver of the vehicle was acting within the scope of his employment when the accident occurred, and secondly, that the general damages awarded were excessive.
There seems to be no doubt that on the morning of the accident the driver of the vehicle had taken it on his master’s business to the premises in Freetown of the Societe Commerciale de l’Ouest Africain for the purpose of taking on a load if there was one for him, and that it was while he was on his way back to his master’s premises that the accident occurred.
According to the driver he deviated from the normal route back to his master’s premises in the hope of meeting a friend at the premises of the United Africa Company, which he failed to do, but he also said “my master had never told me the route I was to drive in”.
As has often been said before, it is impossible to draw any hard-and-fast line between the classes of acts which are within and those which are without the scope of the employment, or to say where the one ends and the other begins. It is in every case a question of degree, and therefore one of fact. The onus of proving this allegation was clearly on the defence. The learned trial Judge found as a fact that when the accident occurred the driver was driving the vehicle in the course of his employment, and nothing that was said at the hearing of this appeal has persuaded me that he was wrong in so doing. In this connection it must be borne in mind that the trial Judge had the advantage of seeing and hearing the witnesses, an advantage denied to us, but I think it only right to say that on the evidence in the record I should have come to the same conclusion. At the commencement of the trial counsel for both sides agreed that the case should be tried on the amended statement of claim filed on the 21st November,1952, and particulars of damage filed on the 18th December, 1952. In the former £3,000 is claimed by way of damages, and in the latter £1,027 1s. 0d. is claimed by way of special damages and the amount claimed under the heading of general damages is left blank.
Counsel for the appellants in support of his submission that the general damages of £2,700 awarded are excessive argued that the respondent did not place the measure of general damages so high himself, because in the amended statement of claim he only claimed an overall sum of £3,000 for damages, and since in the particulars of damage the sum of £1,027 1s. 0d is claimed under the heading of special damage he could only have placed the general damages he was entitled to at £1,972 19s. 0d., because the amount of special damages claimed, that is to say £1,027 1s. 0d. fell to be deducted from the overall sum of £3,000 originally claimed as damages. I am unable to accept this proposition which seems to me to ignore the fact that the particulars of damage filed on the 18th December, 1952, contain, as I have already said, a claim for damages under two specific heads, firstly, special damages of £1,027 1s. 0d., and secondly, general damages, the amount of which is left at large for the Court to determine. The case in the Court below was, by agreement, conducted on the footing that the two documents in question represented the plaintiff’s claim. It was not suggested at the trial that any more specific amendment ought to have been made nor is it raised in the grounds of appeal, and it is fair to say that counsel for the appellants made it clear during his argument before us that he was only taking the point in support of his general submission that the sum of £2,700 awarded as general damages was excessive. However, had it been necessary to amend the statement of claim I should, in the circumstances here, have favourably considered any application by the respondent’s counsel for leave to do so.
It was further argued that the learned trial Judge proceeded on wrong principles in making his award, a view with which I am not disposed to agree having regard to the whole of the passage of the judgment in which the question of general damages is dealt with.
Can it be said that the amount awarded in this case is, to use the words of Lord Wright in the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ltd. (1), “a wholly erroneous estimate of the damage suffered”? I have no hesitation in answering that question in the negative. I agree with the view expressed by the learned trial Judge that no money can really compensate the respondent for the injuries he has suffered and that this is clearly a case in which the damages awarded should be substantial.
For the reasons I have given I would dismiss this appeal with costs to be taxed.
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SMITH, C. J.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal dismissed.
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