FYNHOUT PRODUCTION LTD. v. KWAYIE & ANOR.

JUDGMENT OF ANIN J.A

The appellants (who were the third defendants at the trial) were the owners of a timber log production unit at Awaso. They let their entire production unit and business to the second defendant (who did not appeal) with an option to purchase under a hire-purchase agreement executed on 16 May 1961 (exhibit 1). Among the assets of the business let on hire to the second defendant was a lorry, No. AS 5117. On 7 January 1962 - during the currency of the said hire-purchase agreement-the said lorry was being driven by the first defendant (who did not appeal) when it [p.477] collided with a passenger lorry on the highway. The respondent (an infant who was the first plaintiff at the trial), who was a passenger in the passenger lorry, sustained serious injuries, and through his father and next friend (the second plaintiff) he instituted this action against the defendants jointly and severally in the Sekondi High Court for damages “for injuries caused to him by the negligent driving of the first defendant, servant or agent of the second and or third defendant and in the course of his employment and/or agency while the first defendant was in charge of timber truck No. AS 5117 owned by the second and/or third defendant.”

The first defendant pleaded guilty at the criminal court to the offences of careless driving and negligently causing harm and was duly convicted and sentenced to fines totalling £G65. He did not contest this action, though served with process, and judgment was accordingly entered against him. In the result, the negligence of the driver was not disputed by the remaining defendants. The main dispute was the issue of vicarious liability, if any, of either the second or the third defendant, or both of them.

The learned trial judge held the appellants vicariously liable for the negligence of the first defendant and awarded damages against them. He summed up his ratio decidendi thus:

“To sum up, I would say that having once admitted ownership of the lorry, the company on whom the burden lay to prove that the driver was not its servant failed to so satisfy me - on account of insufficient evidence. All the company said was: We did not employ Ayaya. His name is not in our books - but the lorry he was driving is ours. He was carting our timber with it for us! Morrison said that: ‘Ayaya was already working for the company when he took over the running of the business for the company.’ But even if it was he who employed Ayaya - he did so