BORKETEY v. ACHINIVU AND OTHERS

JUDGMENT OF APALOO J.S.C.

At about 10 p.m. on 14 November 1959 a collision occurred between an Oxford Morris taxicab No. AF 283 driven by the appellant (hereinafter called the plaintiff) and a bus No. AF 9223 in the charge of the third respondent. The taxicab which belonged to the plaintiff, was extensively damaged as a result of this accident and was written off as a total loss. It was the plaintiff's claim that this accident occurred as a result of the negligence of the third respondent. The negligence charged against the third respondent was copiously set out in the statement of claim.

The respondents made a half-hearted denial of liability in their statement of defence but conceded that the plaintiff was entitled to various sums of money which it is unnecessary, for present purposes, to set out. At the trial, the respondents frankly conceded negligence and as an issue, that was withdrawn from determination. What the respondents disputed was the quantum of damages to which the appellant was entitled and the loss of earnings. The ground [p.94] on which the respondents considered themselves entitled to resist the claim for loss of earnings, was what they submitted was the true legal position. They argued that as the vehicle was a total loss, they were liable to pay to the plaintiff the pre-accident value of the car and no more. The appellant urged the contrary. The learned trial judge (Mills-Odoi J.), in a full and comprehensive judgment determined the issue of law in favour of the respondents. After citing a number of decided cases and a passage from Charlesworth on Negligence, the judge held that the plaintiff was entitled to the pre-accident value of the car and to towage expenses only. Accordingly, he dismissed the plaintiff's claim for loss of earnings.

It is against this part of the judgment that this appeal has been brought. It was submitted for the plaintiff that in affirming the proposition of law contended for and on behalf of the respondents, the learned judge was in error. It was said that the guiding principle of law in this case is restitutio in integrum. As the plaintiff's taxicab was shown to be earning profits, the plaintiff was entitled not only to the pre-accident value of this car, but also to the profits, which but for the accident, he would have earned. In support of this, counsel referred us to a number of decided cases including Darbishire v. Warran,1 and the Scottish case of Pomphrey v. Cuthbertson (James A.).2 In my opinion,