C. Duclaud V. Mrs M. H. Ginoux (1969)

LawGlobal-Hub Lead Judgment Report

Per Coker, J.S.C.

The appellant has appealed from the judgment of the High Court, Kano State (Holden, J.) given on the 14th March, 1966, whereby he was adjudged to pay to the respondents a total amount of £3,150 representing assessed damages for negligence and 350 guineas costs.

In the High Court the plaintiffs’ writ was endorsed as follows:- “The plaintiffs’ claim is for damages arising out of a road accident in which the plaintiff Mrs M. H. R. Ginoux suffered severe injuries whilst travelling as a passenger in a car driven negligently by the defendant’s wife and as a result of which the plaintiff R. A. Ginoux has lost the society and services of his wife and has been put to consider-able trouble, inconvenience and expense”.

The case of the plaintiffs at the trial was that on the 2nd May, 1964, the second plaintiff was a passenger in the defendant’s car which was then being driven by the wife of the defendant.

The first plaintiff (husband of the second plaintiff) was joined in the action because it was claimed on his behalf that in the events which had happened he too had suffered damage through the loss of the services of his wife and the consequent inconvenience to which he had been put.

PAGE| 2 The two women (i.e. the wife of the defendant who was driving his car and the second plaintiff who was given a lift in the defendant’s car) were travelling along Club Road, Kano, and were stated to be returning home to put their respective babies to bed in time for them to get dressed up for the christening ceremony which a neighbour of theirs had arranged for her child.

They were both in a hurry to get back home and so were admittedly driving rather fast. At a point on the road the car skidded, zig zagged for some distance and eventually crashed into a tree causing the second plaintiff substantial injuries for which she had been receiving medical attention and treatment on an extensive scale. The wife of the defendant denied that she was at any time negligent in her driving of the car and the defendant himself, whilst admitting that his wife had his general authority and consent to drive his car always denied any liability for the damage caused by the accident.

The learned trial judge concluded that the defendant’s wife was, on the evidence, negligent; that the injuries suffered by the second plaintiff were caused by her negligence and that in the circumstances the defendant was vicariously liable for the negligence of his wife and the damages resulting therefrom. He therefore gave judgment in favour of the plaintiffs as stated above.

Two points of objection to the judgment were taken on appeal before us. There was a third point relating to the measure of damages. Learned counsel for the appellant had sought to argue that the damages awarded were excessive and that the judge employed a wrong test of assessment in making the award.

We were not impressed by counsel’s argument on this point and counsel was justified in taking the rather prudent course, which indeed he then took, to abandon that point. If the premises on which the assessment and the award were based are correct, we cannot conceive that it could be argued with propriety that the award was either manifestly too high or the employment of a wrong principle or test had resulted in an unjustifiable award.

Adverting now to the points raised on appeal, it is convenient to set them out first and then deal with them one by one. They may be summarised as follows:- (i) that the judgment is erroneous in law as in the circumstances of the case the defendant could not be vicariously liable for the negligence of his wife; and (ii) there was no proof of negligence and so the judge erred in law to have given judgment against the defendant condemning him in damages.

Dealing with the first point, learned counsel for the appellant submitted that at the time of the accident the wife of the defendant, who drove his car, was neither his agent nor his servant. The undisputed evidence in this case is that the two women were returning home in order to get dressed up in time for a ceremony which they had both hoped to attend.

On the other hand, learned counsel for the plaintiffs contended that there was evidence that at the time of the accident a little child of the defendant was also in the car with the mother and that the fact that the child too was being taken home should be regarded as a matter of interest to the father (i.e. the defend-ant) thereby implying that he was interested in the purpose of the journey.

PAGE| 3  The case raises a problem of immense importance and it is necessary to state clearly the legal position. In Hewitt v. Bonvin & Anor [1940] 1 KB. 188, a son had obtained from his mother, who had the authority to grant it, permission to drive his father’s car.

The son wanted the car for his own purposes in order to drive two girl-friends home. The girl-friends were not known to the parents and it was no concern of either of the parents that the girls should be driven back home. On the way back, through his negligence, the car was overturned and a road accident occurred in which a friend who had accompanied the party was killed. The administrator of the estate of the dec

Case Number: SC.19/1968