Kerewi (Substituted For John Reimu) V Odegbesan (1965)

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ONYEAMA, J.S.C. 

The plaintiff who is the respondent on this appeal was the owner of a taxi-cab registered as No. WS.440. On the 19th of July, 1960, this vehicle was being driven from Warri to Sapele when, about seven miles from Sapele, it was in collision with a Mercedes car No. WS.386 driven by the defendant-appellant and coming from the direction of Sapele. The accident occurred dose to the Sapele end of a bridge; indeed, after the collision, the vehicles were interlocked with the taxi-cab having its rear wheels resting on the bridge and its front wheels on the road approach to the bridge, and the Mercedes car wholly on the road approach; a position from which it seems obvious that the driver of the Mercedes car was attempting to get on the bridge while the taxi was on the point of getting off it. The taxi-cab was extensively damaged as a result of the accident and the drivers of both vehicles suffered injuries necessitating hospital treatment.

On the 29th October, 1960, the respondent commenced an action against the appellant, claiming damages for negligence. The trial of the action took place in the High Court at Sapele (Kester, J.) and the respondent who had claimed £1,070 6s 4d made up of £970 6s 4d special damages and £100 general damages recovered judgement for £898 6s. os special damages and £100 as general damages.

On the Issue of liability for negligence there can be little doubt that the finding of the learned trial judge is fully supported by the evidence and counsel for the appellant does not contend otherwise; he, quite properly, does not press his appeal against the finding that the appellant was negligent. His main complaint is that in the assessment of damages the learned trial judge proceeded on wrong principles. The first ground of appeal reads:

“(a)The learned trial judge erred in law and in fact in awarding the Plaintiff the sum of £628 6s as balance of the outstanding hire purchase account on the damaged car in that the measure of damages in law was the market value of the said car at the date of the loss and also because the outstanding hire purchase account does not reflect a true value of the damaged car as it includes such expenses as interest charges and other expenses.”

The respondent had not claimed £628-6s as the balance due from him on the hire purchase agreement; he had claimed £538 6s 4d, but after the whole case had been heard, and in the course of his judgement, the learned judge said: “The second claim is for the sum of £538 6s 4d being balance of hire purchase due on the car. In support of this plaintiff tendered a bill sent to him by the U.A.C. in September 1960 in respect of the balance due. The bill is for the sum of £628 6s Exhibit “H”. there was no application by him to amend this claim to read £628-6s instead of £538 6s 4d. But in order to arrive at a just and proper decision I think this is a case where the Court should exercise its power under Order 14 of the High Court Rules by amending the amount of £538 6s 4d claimed under special damages as the amount still due to be paid to the U.A.C. on the car to read £628 6s as evidenced by Exhibit ‘H”. The claim under item (II) is hereby amended to read £628 6s instead of £538 6s 4d with 7 guineas costs to the defendant.

Having held that the plaintiff has a right to bring this action, I also hold that he can maintain an action for the unpaid balance due on the car against the defendant. Whatever is recovered under this item of claim must be accounted for to the owner, the U.A.C. The plaintiff is entitled to the sum of £628 6s balance due to the U.A.C. on the car.

It is difficult to discover on what principle the learned judge proceeded in allowing this claim. The hire purchase agreement can in no way be related to the negligence of the appellant whether as caused by it or as a consequence of it. The respondent entered into the agreement, one assumes, because he had not enough money available to him to pay the purchase price of the taxicab at the time he entered into the agreement. The agreement commenced and continued independently of the collision, and to allow the respondent to recover from the appellant a debt due from the respondent on the agreement merely because the goods hired had been damaged in an accident caused by the appellant’s negligence is to fly in the face of the decision in Liesbosch, Dredger v. S.S. Edison (1933) A.C. 449. In that case Lord Wright said at p. 459:

“The substantial issue is what in such a case as the present is the true measure of damage. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitudo in integrum, which means that they should re-cover such a sum as will replace them, so far as can be done by compensation in money, In the same position as ff the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.”

And more pertinently, on the issue of the respondent’s lack of funds compelling him to take the damaged taxi-cab on hire purchase, His Lordship said at p.460: The respondents’ tortious act involved the physical loss of the dredger; that loss must somehow be reduced to terms of money. But the appellant’s actual loss in so far as it was due to their impecuniousity arose from that impecuniousity as a separate and concurrent cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the respondents’ acts, and in my opinion was outside the legal purview of the consequences of these acts.”

The award of damages in the present case based on the hire purchase liability of the respondent leads to the absurd result that the extent of damages which can be recovered from a tort feasor in a similar case would depend on whether the plaintiff is a rich man and able to buy a car without entering into a hire purchase agreement or whether his finances are such that he needs accommodation by way of a hire purchase agreement, and not on the damage done to the car.

We are of the opinion that the contention of counsel for the appellant on this ground is right and that the learned judge’s award on this head of the claim, including the unexplained award of £7-7s costs ought to be set aside. The learned trial judge allowed two other items of damages namely, a claim of £5 a day for 54 days (19/7/60 to 10/9/60) said to be loss of earnings of the taxi-cab and £100 said to be general damages.

Mr Sofola, for the appellant, complains, and not without reason, that he can-not understand what the award of £100 is for. He contends that the proper measure of damages is the value of the car at the time of the accident. In the present case there is no difficulty in measuring the loss suffered by the respondent; it was either the value of the car, if it was a total loss, or loss of earnings during repairs and the cost of the repairs, if it was not.

The respondent put his case on the footing of loss of earnings for about two months, this was accepted and damages awarded. The further award of £100 “general” damages looks like a second compensation to the respondent for the one loss and cannot be justified on any ground. It has been well said that the figure of justice carries a pair of scales and not a cornucopia. The learned judges said he was awarding this sum “in view of the facts of the case and continuous loss of earnings by the car.” On this basis it would pay the respondent not to repair the car and not to do anything to minimize his loss. We find nothing in the facts recorded to justify the award and consider it ought to be set aside. This leaves the award of £270 said to be loss of earnings. It is not clear, either from the evidence or the judgement, whether the income of £5 a day was gross or net. The respondent employed a driver and must of necessity have expended money in the running and the maintenance of the car. All these ought to be taken into account in determining how much earnings the respondent lost in consequence of the appellant’s negligence.

The evidence, however, is that the respondent’s Taxi-cab was a total loss as a result of the collision, and the measure of damages, as was pointed out in S. W. Ubani-Ukoma v. G.E. Nicol (1962) 1 All N.L.R. 105, is the value of the car at the time of the accident plus such further sum as would compensate the owner for loss of earnings and the inconvenience of being without a car during the period reasonably required for procuring another car.

In view of this, the learned trial judge applied the wrong principle in his assessment of the damages recoverable by the respondent and the award of £100 general damages and £270 for “continuous loss of earnings.”

The evidence is that the pre-accident value of the car was £460, and this rep-resents the proper measure of the loss suffered by the respondent as a result of the accident. The respondent is, of course, entitled to an award for loss of earnings and Inconvenience suffered through being without a car for the time reason-ably necessary to get another car and put it on the road. After considering the evidence at the trial we assess the compensation at £50.

The appeal from the judgment of the High Court of the Ward Judicial Division at Sapele given on the 14th of February. 1962 in Suit W/71/1960 between Bisiriyu Odegbesan and John A. Riemu as to damages is therefore allowed. The judgement for the plaintiff for £898 6s special damages and £100 general damages and 78 guineas costs is set aside and in its place is substituted judgment for the plaintiff fo

Other Citation: (1965) LCN/1273(SC)