IN THE HIGH COURT OF LAGOS STATE
ON WEDNESDAY, THE 18TH DAY OF NOVEMBER 1970
OLADUNNI OLUSANYA .............................................. PLAINTIFF
1. ALIMI AKINTOLA
2. THEOPHILUS AJILORE
3. MERCURY INSURANCE CO. LIMITED ............................................. DEFENDANTS
BEFORE: Adefarasin, J.
The plaintiff brought an action against the 1st, 2nd and 3rd defendants jointly and severally for the sum of £5000 being special and general damages suffered by the plaintiff as a result of the negligence of the 1st defendant as servant of the 2nd defendant "in manipulating and or controlling stage carriage No. LK 2601 owned by the 2nd defendant."
The evidence was that the 1st defendant was the servant of the 2nd defendant and that in the course of his employment he drove the stage carriage with the plaintiff and two others in it as fare-paying passengers. The evidence showed that the 1st defendant drove the said vehicle at an excessive speed and swerved from one side of the road to the other and collided with an on-coming vehicle.
(1) The 1st defendant was grossly negligent and that as a result the plaintiff suffered serious injuries. The 2nd defendant as the master of the 1st defendant, was liable to the plaintiff for the damages suffered by him.
(2) In an action for damages for negligence arising out of the use of a motor vehicle in respect of which an Insurance Company has agreed to indemnify the insured, it is wrong to join the Insurance Company since it is not a tortfeasor.
However, the actual wrongdoer, the defendant to the claim for damages for negligence who apprehends a dispute between him and his insurers as to the liability of the latter under the insurance policy could apply to join such Insurance Company. In that case, and, not until then, is there also an issue concerning the contract of indemnity.
Judgment for the Plaintiff: Claim against 3rd Defendant dismissed.
Cases referred to:
Sun Insurance Co. v. Ojemuyiwa 1965 NMLP p.451
Carpenter v. Ebblewhite & ors. 1939 1 KBD p.347
Post Office v. Norwich Union Fire Insurance Company 1967 1 A.E.R. p.577
Constitution referred to:
Constitution of Nigeria, Section 117(6)
ACTION FOR DAMAGES FOR NEGLIGENCE
Osinoiki, for Plaintiff
Osipitan, for 2nd and 3rd Defendants.
Adefarasin, J.:-This is a claim by the plaintiff against 2nd and 3rd defendants, jointly and severally, for the sum of £5,000 being special and general damages suffered by the plaintiff as a result of the negligence of the 1st defendant as a servant of the 2nd defendant "in manipulating and or controlling stage Carriage No. LK2601 owned by the 2nd defendant along Lagos-Ikorodu Road on the 2nd February, 1968,..." The 1st defendant, who drove the vehicle No. LK2601 at the time of the incident complained about, did not appear at the trial. The writ of summons in the case, was, in pursuance of the order of this Court, pasted at the door of his residence, No. 91 Docemo Street, Lagos. The 1st defendant did not appear at the trial or defend the action. He filed no Statement of Defence. The 2nd defendant did not turn up at the trial but the representatives of the 3rd defendant company were present.
The case of the plaintiff is that the 1st defendant while in charge of the vehicle No. LK2601 on the 2nd of February, 1968, drove the vehicle negligently, drove it at an excessive speed, failed to take sufficient regard for traffic that was or might reasonably be expected to be on the road, failed to keep to his own side of the road and failed to stop, slow down or swerve in any other way so as to control the vehicle and avoid its collision with the vehicle No. LN8457 which was travelling in the other direction. As a result of the negligence of the 1st defendant the plaintiff, who was a passenger in the 1st defendant's vehicle No LK 2601, was injured and had to be admitted in hospital. The second defendant is joined in the action as the master of the 1st defendant, in the course of whose employment the 1st defendant was driving. The 2nd defendant denied all the averments in the plaintiff's Statement of Claim alleging negligence on the part of the 1st defendant and the fact that the 1st defendant was, at the material time, the servant of the 2nd defendant and in the course of his employment.
I will deal first with the issue of the liability of the 1st and 2nd defendants. As I stated earlier the 2nd defendant denied that the 1st defendant was his servant or that he was driving the commercial vehicle No. LK2601 in the course of his employment as the 2nd defendant's servant. In fact, the 2nd defendant pleaded in paragraphs 3 and 4 of his Statement of Defence that the 1st defendant was not his employee and also that the car was driven at the material time by the employee of the hirer of the vehicle. He did not, however, offer any evidence in support of these averments. Evidence of a clear nature was led to show not only that the 2nd defendant was the owner of the Commercial vehicle No LK 2601, but that at the material time that the vehicle was driven by the 1st defendant who was his servant and who drove it at his instance and in the course of his employment. The plaintiff said, and I believe him, that both the 1st and 2nd defendants visited him in hospital and both of them told him that the 2nd defendant owned the vehicle and that the 1st defendant was his servant employed to drive the vehicle. I also accept the evidence of Police Corporal Zaccheus Ilori (plaintiff's 4th witness) who stated that the 2nd defendant after being served with the Traffic Police Form MT2 requesting him to produce the driver within 7 days, the 2nd defendant produced the 1st defendant before the Ikeja Police Station. The 2nd defendant did not give any evidence at all, he did not appear at the trial. It is my finding that the 1st defendant was the servant of the 2nd defendant and that in the course of his employment as such a servant he drove the stage carriage, No. LK. 2601 on 2nd February, 1968, with the plaintiff, Mukadas Finni (plaintiff's 2nd witness) and Police Constable George Ogunbiyi (plaintiff's 3rd witness) in it as fare-paying passengers.
Evidence of a compelling nature was led to show that the 1st defendant drove the vehicle in a reckless and negligent manner. The plaintiff and his witness Finni and Ogunbiyi said in their evidence which I believe, that from the time the vehicle had passed Palm Grove it started to travel at an excessive speed and began to swerve from one side of the road to the other. So frightening was the speed and the manner at which he drove that all the passengers began to shout and to appeal to him to drive carefully and at less speed. The 1st defendant paid no heed to their appeal. In the end he swerved from his own lane on the road to the offside of the road when facing Ikorodu. There he collided with the vehicle No. LN. 8457 which had been going in the opposite direction and was virtually off the tarmac in an effort to avoid a collision. I have no doubt at all that the 1st defendant was grossly negligent and that as a result the plaintiff suffered serious injuries which I shall discuss later on. I accept the evidence of the plaintiff and his witnesses Finni, Ogunbiyi and Police Corporal Ilori and I am satisfied that the negligence of the 1st defendant has been well established. The 2nd defendant, as the master of the 1st defendant is liable to the plaintiff for the damages suffered by him.
I now turn to discuss the matter of the liability of the 3rd defendant company who are the Insurance Company who entered into an insurance agreement with the 2nd defendant to indemnify him in respect of the vehicle No. LK 2601 with regard to third party risks. The question that arises for a consideration is whether an insurance Company ought to be joined in an action for damages for negligence arising out of the use of a motor vehicle in respect of which the Company has agreed to indemnify the insured. My view is that such an insurance company cannot be joined in such an action for damages for negligence since it is not, by any stretch of the imagination, a tortfeasor. What I mean is amply illustrated in the case in hand by the particulars of claim which claims against all the three defendants:-
"...jointly and severally, and in the alternative £5,000 being special and general damages suffered by the plaintiff as a result of the negligence of the 1st defendant..."
It is abundantly clear from the foregoing quotation from the particulars of claim that what is claimed against the defendants (including the 3rd defendant company) is for damages suffered by the plaintiff as a result of the negligence of the 1st defendant. The evidence led by the plaintiff does not support the claim that the 3rd defendant had anything to do with the act of the 1st defendant of which the plaintiff complains or that the doctrine of vicarious liability could apply to him. They could not, therefore, to my mind, be joined to an action where the only allegation is that there was an act of negligence by someone else in respect of a vehicle covered by an insurance policy of which they are the insurers. It might be different if there were any dispute on the liability of the insurance company as to their liability to indemnify the assured.
It seems to me that there is a complete misunderstanding of the decision of the Supreme Court in Sun Insurance Company v. Ojemuyiwa, 1965 NMLR p.451. In that case Bairamian, J.S.C, (as he then was) at page 454 of the report stated:-
"The remaining reflection is that as in Nigeria civil cases are tried by a judge alone, there is no need to conduct those fatal accident cases in a world of make believe. At present it is usual to name the owner of the vehicle and his driver as the defendants to a suit claiming damages, and to leave the insurers who control the defence formally out of the suit; we would ask the solicitors of the parties to consider whether in these third party insurance cases it would not be better to have the insurers also joined."
In the Sun Insurance Company case the Supreme Court, acting under section117(6) of the Constitution of the Federation granted leave to the insurers as a person having an interest in the matter of a claim for damages for negligence within the meaning of section 117 (6) of the Constitution. Since then there appears to be a thinking amongst some legal practitioners that the Supreme Court decision was an authority for joining an Insurance Company in every running down case in which the insurance company could be liable for contribution or indemnity. This thinking, to my mind, is a complete misunderstanding of the obiter dictum, of Bairaimian, J.S.C, in the Sun Insurance Company case. While it is not doubted that an Insurance Company is entitled to be joined where there is an issue as to whether there is a contract of indemnity between the defendant and the insurance company, a joinder of an insurance company to a claim for damages for negligence simplifier is quite wrong. The insurance company is no wrong doer. What concerns the Company is purely contractual-the contract of insurance. However, the actual wrongdoer, the defendant to the claim for damages for negligence who apprehends a dispute between him and his insurers as to the liability of the latter under the insurance policy could apply to join such insurance company. In that case and, not until then, is there also an issue concerning the contract of indemnity. In the instant case the joinder of the insurance company is wrong since there is no dispute whatsoever touching the company. In Carpenter v. Ebblewhite and others 1939 1 KBD p. 347 Greer, L.J., discussing whether an insurance company can be joined to an action in circumstances as in the instant case, said:-
"It seems to me that the making of such a claim is contrary to anything that has ever been decided in regard to actions for declarations. It has never been determined that in an action by a plaintiff against a defendant there can be a claim by the plaintiff for a declaration of liability against a third person for the relief claimed in the action where no dispute has as yet arisen between the plaintiff and that person. It would not make any difference if the claim for a declaration against that person were made in a separate action against him, for it would still be vexatious for the plaintiff to bring such an action against that person before any dispute had arisen between them. It seems to me that no dispute can arise between the plaintiffs and the insurance company until after the disposal of the action by the plaintiffs against the defendant Ebblewhite in favour of the plaintiffs and the establishment of a right of indemnity by Ebblewhite against the insurance company."
Following the decision in the Ebblewhite case I cannot accept the proposition that the obiter dictum of the Supreme Court in the Sun Insurance Company case is an authority for an injured person to join his adversary's insurance company to an action for damages sustained by him by the negligence of his adversary in a motor accident. (See also Post Office v. Norwich Union Fire Insurance Company 1967 A.E.R. p.577). I would, therefore, dismiss the plaintiff's claim against the 3rd defendant.
I now come to consider the matter of damages claimed by the plaintiff. He claims special and general damages of £5,000 whereof £2,010 is special damages and £2,990 is general damages. As special damages he claims £1,920 as loss of income from 2nd February, 1968, at the rate, as he said, of £80 per month, Under the same item of special damage he claims £69.5s.0d.. for Medical expenses and £20.15s.0d. as travelling expenses. The oral evidence which the plaintiff did not support the claim on his writ and his Statement of Claim For instance, he said he was claiming £60 on medical expenses as against £69 claimed in his Statement of Claim. He claimed £70 as Travelling expenses whereas in his Statement of Claim it was £20.15s.0d. What is worse, the plaintiff gave no evidence at all as to the basis for his claims. He just said that he earned £80 per month without showing how he arrived at this figure. At another stage in his evidence he stated that his monthly earning was £100. Special damages must be proved strictly and this the plaintiff has failed to do. He has failed to give any satisfactory proof of his earning. This he might have done by giving evidence as to his monthly salary or profits. He could do it by showing the accounts of his business or by producing his income tax receipts. He failed to show the cost of medical expenses which he could have done by producing receipts. He did not establish that he spent £20.15s.0d. on travelling. Granting that it is not convenient for anyone to take receipts from taxi drivers and buses he could have kept a daily book of accounts showing how much he spent on transport. One gets the impression that the plaintiff is out to inflate the damage suffered by him.
The items of special damage has not been proved and I am unable to make any award under this head.
The evidence clearly establishes that the plaintiff suffered a compound fracture of his humerus, radius and ulna-had an extensive wound of the upper limb with fractures of three main bones in the upper arm and the forearm around the elbow joint. As a result of the severe injuries which he suffered as a result of the accident he had a series of operations after which he was discharged on 16th July, 1968, only to be re-admitted and re-operated upon on 1st June, 1970. He was finally discharged on 8th August, 1970, Up till the time of the hearing his fractures were not united and he still goes about in plaster. His degree of disability for the purposes of workmen's compensation had been assessed at 65%. I think the degree of disability under the Workmen's Compensation Act is not useful for consideration in assessing the quantum of damage in a case such as this but it does give an idea of the extent and nature of the injury. There can be no doubt that the plaintiff has suffered considerable pain and inconvenience and that these had continued from the 2nd February, 1968, till the date of hearing. He still faces yet another operation soon. Dr Orhewere testified to the effect that the usefulness of his right hand has been significantly diminished. I believe this and accept the whole evidence of Dr Orhewere as to the nature of the injuries suffered by the plaintiff, the treatment which he received and other prospects he has for the future. I take the whole of the circumstances of the plaintiff into consideration-the injury which he suffered, the protracted treatment for his injuries which has been spread over a period of very nearly three years, the pain and discomfort he has had to put up with, the handicap brought upon him by reason of the injury and the fact that even now he cannot hope for a full use of the injured arm. I an entitled to take all this-as indeed the expenses which this situation had imposed upon him by way of travelling to and from hospital and his inability to pursue to any measure his employment and his pleasures-into consideration and to fix that sum which, as far as money can do it, will put the plaintiff in the position he might have been had this tragedy not befallen him, I have come to think that a sum of £1,200 as general damages will be fair and reasonable having regard to the matters to which I have referred. Accordingly, I enter judgment in favour of the plaintiff against both 1st and 2nd defendants, jointly and severally for £1,200 general damages for the negligence subject matter of this action. I assess costs against both 1st and 2nd defendants at £84. As I had said earlier the 3rd defendants ought never to have been joined and I would make order that the plaintiff's claim against them be dismissed with £18.18s.0d. costs to the 3rd defendant company.
Judgment for the Plaintiff: Claim against third Defendant dismissed.