Ashiru Bakare V Alfred Jelkh (1968)

LawGlobal-Hub Lead Judgment Report

BRETT,J.S.C.

This is an appeal by the defendants against the judgment of Caxton-Martins, J. in the High Court of Lagos (suit No. LD/435/64) awarding the plaintiff damages to a total of £680.12s.6d. for personal injuries and damage to a motor vehicle caused by the negligence of the defendants. The facts of the accident are not in dispute.

On the morning of Sunday, 15th March, 1964, the plaintiff was driving his Peugeot car along the Marina in the direction of Victoria Beach when he saw a Jeep approaching from the opposite direction and towing a trailer with a big motor boat on R. He later discovered that the jeep was being driven by the first defendant, and was owned by his employer the second defendant.

As the two vehicles came near to each other the trailer and motor boat became detached from the Jeep, swerved across the road, and struck the front of the plaintiff’s car, causing injuries to the plaintiffs arm and head and extensive damage to the car.

The Statement of Claim set out the above facts and alleged that the collision was caused by the negligence of the first defendant. The defence denied negligence, pleaded inevitable accident, and asked for further particulars of the negligence alleged, which were given as follows:-

PARTICULARS OF NEGLIGENCE

1. The defendants failed and/or neglected to secure the fastening of the boat to the rear of the motor vehicle in an effective manner

2. Driving too fast.

3. The first defendant failed to apply his brakes in time or at all or so to steer or control his motor car and the boat as to avoid the said collision.”

The evidence showed that the trailer had been attached to the Jeep by means of a hook, which had broken, and the trial judge found the negligence alleged in paragraph 1 of the particulars of negligence proved. The defendants appealed against the finding of liability but Mr. Benson agreed (a) that the doctrine of res ipsa loquitur applied; (b) that the onus was on the defendants to show that the trailer was properly fastened to the Jeep; (c) that the defendants called no evidence to explain how the hook came to break, or to suggest that it had any latent defect. We have no hesitation in upholding the finding on the issue of liability.

As to the damages awarded, the plaintiff claimed £15.15s.0d medical expenses; £414.17s.6d damage to his car; £320.12s.6d loss of use 15.3.64 – 17.6.64 at £3.3s.6d. a day; and £248.15s.0d. general damages making a total of £1,000. The judge awarded him £15.15s.0d. medical expenses; £414.17s.6d damage to the car; £200 for loss of use; and £50 general damages. Mr. Benson submitted that the doctor who treated the plaintiff ought to have been called to prove the medical expenses but we regard the plaintiff’s evidence, coupled with the doctor’s receipt, as sufficient proof.

It would add considerably to the expense of litigation if doctors had to be called in all cases such as this and we suggest to legal practitioners that they might see whether the amount of special damages of this kind could not be agreed with the parties.

The amount awarded for damage to the car was arrived at by taking the value of the car immediately before the accident, which the plaintiff estimated at £914.17s.6d., and deducting its value immediately after the accident, which was estimated by the agents for Peugeot cars at £500. However, an engineer called by the plaintiff estimated that the value of the car immediately before the accident was £850, and that if repairs costing £238.16s.0d had been carried out promptly it would have been worth £750. Mr. Benson concedes that if these repairs had been carried out the plaintiff would have been entitled to recover their costs, plus the decrease of £100 in the value of the car remaining after the repairs had been carried out, making a total of £338.16s.0d. He submits that that is the highest sum the plaintiff can recover.

A plaintiff is undoubtedly expected to take all reasonable steps to minimise the damage, and if he omits to act reasonably vis-à-vis the defendant he cannot recover any greater sum than would have been recoverable If he had acted reasonably: Darbishire v. Warran [1963) 1 W.L.R. 1067. The question here is, whether the only reasonable course for the plaintiff to adopt would have been to have the car repaired at the defendant’s expense, and accept £100 in compensation for the fact that the repairs had failed to restore the car to the value it had before the accident, or whether he was entitled, vis-a-vis the defendant, to say “The damage is not fully repairable and the repairs sugggested will not give me substantially as valuable a car as I had before the accident. What I want is a reliable car, not a sum of money, and my duty to minimise the damages does not require me to repair the car merely for the purpose of selling it.

It may not be easy to find someone willing to pay £750 for a car which has once been as badly damaged as this one and it is unreasonable to expect me to take the risk of not finding one.” In the former case the damages will be £338.16s.0d., in the later, on the evidence of the plaintiff’s witness, they will be the difference between £850 and £500 i.e., £350 so that only £11.4s.0d is at stake in the present case, but there is a point of principle involved as well. We do not consider that a plaintiff ought to be treated as having acted unreasonably merely because the facts proved to the trial show that he might have adopted a course which, though less advantageous to himself, would have reduced his claim on the defendant. Each case has to be decided on its own facts and on the facts of the present case we hold that the proper sum to indemnify the plaintiff for the damage under this head is £350. The sum awarded is reduced to that amount.

As we have said, the plaintiff claimed for loss of use at £3.7s.6d. a day for just over three months, but the evident show that he left Nigeria two months after the accident and counsel for the defendant submitted in the court below that the plaintiff could not recover for a longer period than this. The trial judge did not explain how he arrived at the award of  £200, but it seems probable that it was a round figure based on about £3.7s.6d.a day for about two months. If the plaintiff had had the car repaired he might have recovered damages for loss of use for the period the repairs took but since it was never his intention to have the car repaired Mr. Benson is right in submitting that he can only recover for the period that it would have taken him to obtain a new car.

Mr. Benson suggested fourteen days as reasonable and Mr. Peter-Thomas finally accepted this period. Fourteen days at £ 3.7s.6d. would give a total of £ 47.6s.0d. and the damages under this head are reduced to that amount.

There was no appeal against the amount of general damages awarded.

As a result the appeal is dismissed as regards liability but the total damages awarded are reduced to £463. The order for costs in the High Court will remain unaltered, and as both parties have succeeded to some extent in this court there will be no order for costs of the appeal.

Other Citation: (1968) LCN/1598(SC)