NYAME v. TARZAN TRANSPORT AND ANOTHER

JUDGMENT OF AZU CRABBE J.S.C.

On 13 August 1964, at a place between Nkawkaw and Awendadze Village, on the Nkawkaw-Kumasi road, a vehicle No. AG 5744, owned by the second defendant, collided with a Bedford truck No. AG 8721, owned by the first defendant-company. The plaintiff, who was a fare-paying passenger on the former vehicle, sustained personal injuries as a result of the collision. In an action before Mensa Boison J. in the High Court, Kumasi, the plaintiff claimed damages from the owners of the two vehicles, alleging negligence on the part of their drivers. In his judgment following the trial Mensa Boison J. said:

“In the result I am satisfied that the accident was wholly caused by the negligence of the first defendant by driving into the [p.11] path of the second defendant's bus and by lack of proper control failed to avoid colliding with the second defendant's vehicle. I do not find any negligence in the driver of bus No. AG 5744.”

The first defendant has now appealed to this court, and the argument in support of the appeal is based solely on the ground that the judgment cannot be supported, having regard to the evidence.

This court is loth to disturb a finding of fact by a trial judge who has had the advantage of observing the demeanour of the witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial," per Lord Macmillan in Watt (or Thomas) v. Thomas [1947] A.C. 484 at pp. 490-491, H.L. But it is far more ready to reverse his decision in a case which depends on inferences from admitted or undisputed facts.

Negligence is a question of fact, and the burden is on the plaintiff to prove that the defendant's negligence was the cause of the accident. The plaintiff must adduce evidence from which the inference can be drawn that the negligence of the defendant led to the accident, and the defendant can only be held liable if he is shown on the balance of probabilities to have caused damage to the plaintiff.

In this case the drivers of the two defendants were in control of vehicles which collided in circumstances which must have been due to the negligence of the driver of the first defendant or the second defendant. The basic rule is that the plaintiff must prove his case on the balance of probabilities, and if the inference is that only one of the drivers had been negligent, and it is impossible to say which, then the plaintiff would be held to have f