AMAKOM SAWMILL & CO. v. MANSAH AND ANOTHER

JUDGMENT OF AKUFO-ADDO J.S.C.

[His lordship recited the facts as set out in the headnote and continued:] The grounds put forward by learned counsel for the appellants in support of the appeal were mostly a reiteration of the defences put up in the court below and may be summarised as follows:

(1) that the finding that the driver of the truck was negligent is against the weight of evidence; (2) that on the principle of volenti non fit injuria the respondents were not entitled to succeed; (3) that the deceased was guilty of contributory negligence; (4) that assuming the driver of the truck was negligent the appellants are not vicariously liable on the ground that the truck was hired by the deceased under whose control and direction the driver was at all material times; (5) that the deceased's death was the result of inevitable accident; and (6) that the damages were excessive.

It is perhaps unnecessary to state that, except in the case of the ground relating to damages, the issues raised by these grounds were all issues of fact determinable upon the evidence before the learned trial judge. Learned counsel for the appellants has however referred to a number of English cases on the issues relating to the plea of volenti non fit injuria, to the alleged contributory negligence of the deceased and to the liability of the appellants for the negligence of their driver, and I think it desirable to examine briefly these cases to determine their relevance to these issues.

[p.371]

Mr. Adade, learned counsel for the appellants, submitted that the deceased in consenting to move (albeit at the request of the driver) from the driver's cab to the back of the truck accepted all the dangers attendant upon the mode of travelling on the truck, for the back of the truck was only intended for the carrying of logs and not for passengers, and that travelling there meant standing precariously by the side of the log and holding on tightly to the hood to keep one's balance. There was always, submitted counsel, the danger of a passenger losing his balance and falling off the truck. It cannot be doubted that travelling at the back of a timber truck especially when it is loaded with logs is a very dangerous mode of travelling, but what risk does a person run who resorts to that mode of travelling? It certainly cannot be more than the risk of losing his balance and falling off the truck, and if the deceased accepted this risk (assuming learned counsel's submission to be correct)