3PLR – DENTON V ABEJE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AKIN DENTON
V.
MUIBATU ABEJE & ANOR.
HIGH COURT
(Suit LD/450/1970)
3PLR/1972/46 (HC)
BEFORE:
ODESANYA J.,
BETWEEN:
AKIN DENTON
AND
MUIBATU ABEJE & ANOR.
REPRESENTATION
Adewole for the plaintiff.
Olaogun for the first defendant.
Second defendants not represented.
MAIN ISSUES
TORT AND PERSONAL INJURY:- Motor vehicle accident – Negligence – Where proved – Heads of special damages – Calculation of – Nature of evidence necessary to prove same – Calculation of depreciation of car – Claim for general damages based Relevant considerations
INSURANCE AND RE-INSURANCE:- Comprehensive insurance – Full insurance value paid in lieu of repair of insured car involved in an accident – Whether a measure the pre-accident value of the car – Relevant considerations
INSURANCE AND RE-INSURANCE:- Car collision accident – Where negligence is established against defendant driver – Payment by insurers of plaintiff’s car – Whether settlement of the claim made on them by plaintiff’s insurers does not diminish the defendants’ liability – Claims for general damages based on evidence of pain and suffering – Failure to call medical evidence – How treated
INSURANCE AND RE-INSURANCE:- Third-policy insurance – Joinder of insurance company to the suit on the application of the defendant who is a holder of the policy – Propriety of – Whether defendant policy holder is entitled to be indemnified by the insurers against any damages awarded against in the action
HEALTHCARE LAW:- Claim for general damages – Pain and suffering arising from negligent driving by defendant – Nature of medical evidence required – Effect of failure thereto
ETHICS – LEGAL PRACTITIONER:- Duty of diligence owed to the court – Practice by some counsel of leaving to a trial judge the task of conducting unaided the research which the case before him requires – Failure of counsels to cite useful decided cases – Attitude of court thereto
TRANSPORTATION AND LOGISTICS LAW – MOTOR VEHICLE ACCIDENT:- Motor car collision – Defendant’s vehicle jumping queue at bridge – Collision with vehicle on opposite side of road – First defendant joining insurance company by third party notice – Plaintiff’s insurance company paying money in lieu of repairs -Particulars of loss of use of car falsifying figure given – Reason for hire of taxi for use and receipts for money paid not tendered by plaintiff – Percentage of depreciation of car arrived at by court – Medical evidence not called to support claim for pain and suffering
MAIN JUDGMENT
ODESANYA J.: At all times material to this action:
(1) The plaintiff, the assistant manager of John Holt Ltd. at Ondo, was the owner of Ford Cortina private car registered as No. KC 6927 which he bought at Kano in October 1965 for £747 and had insured comprehensively with the Lion of Africa Insurance Co. Ltd.
(2) The first defendant was the owner of Bedford passenger lorry registered as No. LO 9148 and insured on a third party basis with the Mercury Assurance Co. Ltd.
Originally Mustapha Yahaya, the servant, agent and driver of the first defendant was her co-defendant in this action but at the plaintiff’s instance he was dismissed from the suit and on the third party application of the first defendant his place was taken by Mercury Assurance Co. Ltd. hereinafter called the second defendant or the defendant company.
On January 4, 1970, at about 5 p.m., the plaintiff was travelling from Lagos to Ondo by his car. Just after Majidun Bridge on the way to Ikorodu the traffic was very heavy and every motor vehicle was being driven slowly on either side of the road. The first defendant’s lorry driven by Mustapha Yahaya was in the queue on the other side travelling from Ikorodu to Lagos and carrying passengers. All of a sudden the driver jumped his queue, crossed the road and made for the plaintiff’s car on the other side of the road. The plaintiff who was driving the car which he was occupying with two friends pulled up on his side of the road. As the lorry was approaching his car, which was stationary, the plaintiff blew his horn and hoped that the lorry would stop. The first defendant’s driver drove the lorry so negligently that it ran into the plaintiff’s car at the edge of the road on the left. The car was about 150 feet away from the bridge where it stopped before the lorry was driven into it. The impact was so great that the plaintiff’s car was forcibly pushed back into the vehicle behind it which, in turn, hit the vehicle at the back thereof. The plaintiff’s shoulder was injured and he had shock and lacerations. He was taken to the Lagos University Teaching Hospital while his car was abandoned at the scene of the accident. Later on the disabled car was towed away into the Apapa garage of Messrs. Joe Allen & Co. Ltd. The cost of the repairs which the damage done to the vehicle by the lorry necessitated was estimated. As the cost of the repairs was £701 10s. 4d. the plaintiff accepted from his insurers, the Lion of Africa Insurance Co. Ltd., the sum of £500 for which the car was comprehensively insured. He accepted the money in lieu of the repairs which were not considered economical.
The negligence and vicarious liability of the first defendant have been established as pleaded by the plaintiff. Neither the first defendant nor the second defendant led any evidence at all and so did not contradict the clear evidence of the plaintiff.
I shall deal with the special and general damages claimed by the plaintiff and the particulars thereof before adverting to the propriety of joining the second defendant to the suit and the liability of the insurance company if it has been properly joined.
The loss of use of his car as quantified by the plaintiff is £300. The particulars given by the plaintiff falsify the figure. If it was true that he hired a taxi from January 4, 1970, until April 1, 1970, and paid £5 every day to the owner of the taxi, he should under this head be claiming not £300 for 60 days but £435 for 87 days. The plaintiff gave in his testimony the name and address of the taxi owner at Ondo and he also mentioned the registered number of the taxi as WF 2146. His evidence is that the taxi was brought to him every day. He neither called the owner whose name and address he knew, nor did he produce a receipt for any payment which he made. It is not clear from his evidence whether his business at Ondo required the use of a taxi every day or at all. I hold that this head of special damage remains unestablished and it is disallowed. The sum of £24 claimed at the rate of £I per day was apparently abandoned by the plaintiff and is therefore disallowed. The pre-accident value of the car is specially claimed. I do not know how the plaintiff arrived at the sum of £500 as the pre-accident value of the car. He testified that he bought the car in Kano in October 1965 for £747. It was new when he bought it. The accident occurred about four years three months after the car was purchased. It was insured at the time of the accident for £500. There must have been more depreciation in the value of the car during the years to cast doubt on the insured value as its pre-accident value. It is not known what the speedometer recorded at the time the accident occurred. The pre-accident value could not therefore be assessed on the basis of a depreciation related to the number of miles already done at the time the accident occurred. The insurance company paid to the plaintiff on April 9, 1970, the sum of £500. Of course this payment does not affect the liability of the defendants: see Simpson v. Thompson (1877) 3 A.C. 279 H.L. Whether the plaintiff’s insurers settled the claim made on them or not does not diminish the defendants’ liability.
This payment appears to have been made on a total loss basis according to the endorsement on exhibit “ A.” In White Cross Insurance Co. Ltd. and Anor v. John Mbaeri suit No. C/41/1959 heard in the High Court of Calabar, the trial judge estimated the depreciation in the value of the lorry involved in the accident to be at least 25 per cent. a year. On appeal FSC.106/1960 heard in April 1961 this estimate was not questioned. This is the inference one draws from the reference to the case in Ubani-Ukoma v. Nicol [1962] 1 All N.L.R. 105. I would prefer 15 per cent. to 25 per cent. for a private car although the plaintiff testified that he travelled a lot. On this reckoning the pre-accident value of the car would be £299 and this I award under this head of claim. The plaintiff claims general damages. He gave evidence of pain and suffering but called no medical evidence in order to assist the court. I would award £20 under the head of general damages.
The second defendant was joined to the suit on the application of the first defendant who under section 2 of her third-party policy exhibit “ D “ is entitled to be indemnified by the second defendant against any damages awarded against her in this action. The company has therefore been properly joined to the suit.
The plaintiff’s alternative claim for £701 10s. 4d. being the cost of the unexecuted repairs on the car is in the circumstances rejected. It is alternative to what is claimed and allowed for pre-accident value. The plaintiff therefore succeeds and is awarded special and general damages in the sum of £319 with costs assessed at 80 guineas.
It is necessary to direct attention to the growing practice by some counsel of leaving to a trial judge the task of conducting unaided the research which the case before him requires. No one should now believe in the myth that the law resides in the bosom of the judge. The judge has long ceased to be a slot machine which would spill out the law applicable to a case once sufficient facts are fed into the machine. Not a single case was cited by any of the three lawyers who addressed the court at the conclusion of this case even though the suit touches that part of the law which is saturated with extremely useful decided cases.
