Kamara v. Gatewah & Another (CC 127 of 1965) [1966] SLSC 10 (31 January 1966)

months' imprisonment or Le200 fine in respect of the so-called first count is set aside and the conviction quashed. I do not feel I can make an order for costs against the respondent who was the com plainant in the court below because I am sure she merely made her 5 complaint and assumed that the due process of law would be carried out. I do however order that LelO deposited by the appellant for the cost of the records be repaid to him in full together with any other sum he may have deposited to abide the costs of appeal. I should make it clear that this decision does not affect the right of the 10 respondent to take the proper steps to try to obtain payment under the affiliation order.

Order accordingly. KAMARA v. GATEWAH and MACAULEY SuPREME CouRT (Dobbs, J.): January 31st, 1966 (Civil Case No. 127/65) [I] Civil Procedure-default of appearance-assessment of damages on default judgment-order for assessment by Master, if not drawn up, discharged by award at trial of action against co-defendant: An order, which has not been drawn up, for the assessment of damages by the Master and Registrar against a defendant who has not appeared is discharged by an award of damages against him by the court at the trial of the action against his co-defendant who has appeared (page 377, lines 17-33).

[2] Civil Procedure-judgments and orders-default judgment-assess ment of damages-order for assessment by Master, if not drawn up, discharged by award at trial of action against co-defendant: See [I] above.

[3] Civil Procedure-judgments and orders-discharge of order before drawn up-order, not drawn up, for Master to assess damages against one defendant-order discharged by award against that defendant at trial of action against co-defendant: See [1] above. [ 4] Road Traffic-negligence-damages-measure of damages-incon venience-inconvenience of attending hospital, etc., included in general damages: General damages for negligence in a motor acci dent case may include a sum for the inconvenience, arising from the accident, to which the plaintiff has been put, including incon venience resulting from loss of use of the plaintiff's damaged vehicle and the inconvenience of attending hospital, making a statement to the police and the like (page 376, lines 16-22).

KAMARA v. GATEWAH, 1964-66 ALR S.L. 370 S.C.

[5] Road Traffic - negligence-damages-measure of damages-incon venience-loss of use of damaged vehicle included in general dam ages: See [ 4] above.

[6] Road Traffic-negligence-duty of driver turning right to ensure road behind clear: If a driver, intending to turn off a road into another road on the right, first veers to his extreme left, it is his duty to stop and make sure the road behind him is clear before he makes his right tum (page 375, lines 24-28; 34-38).

[7] Tort-damages-measure of damages-torts affecting chattels-damage to chattel-recovery of replacement value requires evidence chattel rendered worthless: To support a claim for the replacement value of property damaged in consequence of the defendant's negligence, there should be evidence not only of the cost of replacement but also that the article has become completely worthless (page 377, lines 1-4).

[8] Tort-damages-measure of damages-torts affecting chattels-in convenience a head of general damages for negligence: See [ 4] above.

[9] Tort-damages-measure of damages-torts affecting chattels-loss of chattel-proof of loss from plaintiff's person requires detailed evi-

dence: To support a claim for the value of property lost from the 20 plaintiff's person in consequence of the negligent act of the defendant, evidence that the article was missing is not enough and there should be detailed evidence showing, for example, how securely it was carried, the time when its loss was discovered and the steps taken to ascertain what had become of it (page 376, lines 36-41).

[10] Tort-damages-measure of damages-torts affecting chattels-in convenience of loss of use of vehicle included in general damages for negligence: See [ 4] above.

[11] Tort-damages-measure of damages-torts affecting the person inconvenience a head of general damages for negligence: See [ 4] above.

[12] Tort-damages-measure of damages-torts affecting the person inconvenience of attending hospital, etc., included in general damages for negligence: See [ 4] above.

[13] Tort-negligence-damages-measure of damages-inconvenience a

head of general damages where injury to person or property: See [ 4] 3.5 above.

[14] Tort-negligence-damages-measure of damages-inconvenience inconvenience of attending hospital, etc., included in general dam ages: See [ 4] above.

[15] Tort - negligence - damages-measure of damages-inconvenience 40 -loss of use of damaged vehicle included in general damages: See [4] above.

[16] Tort-negligence-damages-measure of damages-loss of chattel proof of loss from plaintiff's person requires detailed evidence: See [9] above.

[17] Tort-negligence-damages-measure of damages-recovery of re- 5 placement value of damaged property requires evidence property rendered worthless: See [7] above.

[18] Tort-negligence-duty of driver turning right to ensure road behind clear: See [6] above. The plaintiff brought an action in the Supreme Court against the defendants claiming general and special damages for negligent driving by the first defendant's employee, the second defendant. The plaintiff was a pillion passenger on his own motor cycle, which was being driven by another man. In front of them was a bus driven by the second defendant, who was an employee of the first defendant, the owner of the bus. Approaching a road junction on the right, the second defendant drove to the extreme left of the road and the driver of the motor cycle proceeded to overtake the bus. Without pausing, the second defendant pulled over to the right to enter the junction. The motor cycle was already alongside the bus and the vehicles collided. The second defendant neither looked in his mirror nor gave a hand signal before making his right turn. It was not proved that he flashed his indicator or that the driver of the motor cycle sounded his horn. As a result of the collision, the plain tiff sustained injuries and had to attend hospital with consequential loss of earnings, his clothing was damaged and the motor cycle was damaged and sold for scrap. He claimed general damages and special damages for loss of earnings, damage to clothing and damage to the motor cycle, but not for loss of use of the motor cycle. The second defendant did not enter an appearance and inter locutory judgment was signed against him. The court made an order for the assessment of damages against him by the Master and Registrar, but no formal order was drawn up and entered. The defence was that the accident was caused solely by the negligence of the driver of the motor cycle, who was not joined as a defendant. The plaintiff gave evidence of the replacement value of his damaged garments but did not say Jhey had become completely worthless. He said he had had a wallet in his pocket containing money but he said nothing about the security of the pocket or that

r KAMARA v. GATEWAlt, 1964-66 ALR S.L. 370 S.C. the wallet was lost, when its loss was discovered or what steps were taken to ascertain what had become of it. Rule construed: Supreme Court Rules (Laws of Sierra Leone, 1960, cap. 7), O.X, r.6; "Where . . . there are several defendants of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the court shall otherwise direct: . . . ." D. E. F. Luke for the plaintiff; Candappa for the first defendant. The second defendant did not appear and was not represented. DOBBS, J.: On June 14th, 1964 the plaintiff was riding as passenger on the pillion of motor cycle C 562 owned by him but driven at the time by one Joseph Francis Smith along City Road, Wellington, travelling towards Freetown. At the junction of Peeler Street, Wellington, the motor cycle collided with a motor bus E 2243 owned by the first defendant and driven by the second defendant. The plaintiff suffered physical injury and ·the motor cycle was damaged. The plaintiff accordingly took these proceedings in this court claiming damages against the fl.rst defendant and the second defendant for the alleged negligence of the second defendant. The fust defendant is of course sued under the doctrine of "respondeat superior," being the employer of the second defendant; no issue has been raised as to this so that if I fl.nd the second defendant was negligent I can fl.nd the fl.rst defendant also liable to the plaintiff. Particulars of negligence have been given in the statement of claim. Of these, two only seem to be relevant to the facts of this case, viz., (iii) failing to keep any proper look out, or to have any or any sufficient regard for pedestrians in the road, or for the driver and passenger of the motor cycle or for other users of the road; and (v), swerving suddenly to the right. The defence is a denial of negligence and throws all the blame for the accident on the driver of the motor cycle, giving particulars of negligence against him. In the circumstances of this case I do not

think we are concerned to decide whether the driver of the motor cycle was negligent or not. If the first defendant thought he was wholly or in part to blame he could have had him joined as a defend ant and then the question of proportion of blame would have arisen. If it is shown that the second defendant was negligent at all the plaintiff is entitled to succeed against him. The plaintiff and Joseph Francis Smith both gave evidence which in the main was similar and may be summarised as follows : at about six p.m. on June 14th, 1964 they were travelling on the motor cycle towards Freetown at between 30 and 40 miles per hour. They first noticed the defendant's vehicle in front of them as they were passing Wellington Distillery. They came up behind the defendanfs vehicle in City Road, Wellington, before the scene of the accident. Smith ascertained that the road ahead of the defendant's vehicle was clear of approaching traffic so he hooted and started to over take. As he hooted, the defendant's vehicle veered towards the near side of the road, indicating, so Smith thought, that the driver was giving way for him to overtake. When the front wheel of the motor cycle had just passed the front end of the defendant's vehicle the defendant's vehicle pulled over to the right. and caught the motor cycle in the middle, sending it to the offside of the road and tumbling the plaintiff and Smith into the offside gutter. The plaintiff said he was knocked semi-conscious. He and Smith were taken to the Connaught Hospital in the defendant's vehicle. Both the plaintiff and Smith denied that the second defendant gave any signal either by trafficator or by hand of his intention to turn right. The plaintiff denied that at the time it was raining or the road was wet. The second defendant said he was driving his vehicle along City Road, Wellington, in the direction of Freetown and intended to tum right into Peeler Street. About 11 yards before Peeler Street he switched on his Hashing indicator to show his intention of turning right into Peeler Street and also gave a hand signal to the same effect. It was drizzling with rain at the time and he had his parking lights switched on. He said that as he was turning he heard a noise from the direction of his rear tyre. He stopped immediately and got down from his vehicle. He then saw the plaintiff and Smith in the right hand gutter. He said that as the result of the collision there was a scratch right along the right side of the bus terminating in a hole near the front bumper. He called as a witness one Aki Davies who says he witnessed the accident whilst standing at the top of Peeler Street. This witness

KAMARA v. GATEWAH, 1964-66 ALR S.L. 370 S.C. did not give a very clear picture of the accident and said nothing about the actual collision between the vehicles. He said that it was not raining at the time, that it was not dark and that the defendant's vehicle had not its parking lights alight. He said the defendant gave a flashing indication for turning right but gave no hand signal. Mr. Macfoy, the Vehicle Certifying and Examining Officer, gave evidence of examining the defendant's vehicle after the accident. He said he found the offside front bumper bent outwards and the offside cab door had the paint grazed in a straight line. This evidence does not tally exactly with either that of the plaintiff or the defendant. It does not support the contention that there was a graze running the whole length of the body. It does not support the contention of the plaintiff that the motor cycle's front wheel had already passed the front end of the defendant's vehicle before he turned right. It does however indicate that the point of impact was towards the front of the vehicle. I should have mentioned that the second defendant said his vehicle was equipped with reflecting mirrors, one on the left and one on the right of the vehicle. He said he looked into the right hand mirror before making his tum and he saw nothing. Having carefully considered the evidence I have come to the conclusion that the second defendant was negligent. This is without giving any opinion at all on whether or not Smith was also negligent. The evidence that the second defendant first veered to the left was not challenged in cross-examination nor did he deny it in his