Dear Mirror Lawyer, What is the liability of an owner of a vehicle or canoe to a gratuitous passenger who requests a friendly ride?
Nana Danso Danquah, Donkorkrom, Afram Plains
Dear Nana, As a general rule any passenger who boards a vehicle or a canoe and is injured in the course of the journey must prove that the owner owes him a legal duty of care, that the duty has been breached, and lastly that as a result of the breach he has suffered damages.
If the passenger establishes all three ingredients he will succeed in his claim for negligence against the owner. What then is the position of the law concerning persons who are given a “lift” or carried gratuitously by their friends or a Good Samaritan.
The English legal text writer Salmond in his book on Torts at p. 394 explains the position of the law in the following words:
"The position of a licensee must be distinguished from that of a person for whom the occupier has undertaken, even though gratuitously, to perform some service; for example, a gratuitous contract of carriage . . . Such a contract imposes a duty of reasonable care in the performance of it, and this duty extends to ascertaining the safe condition of the premises on which the contract is to be performed. 'The distinction made by Sir John Salmond between the measure of duty owed to one who is a licensee and nothing more and to one who is a licensee for whom some service has been undertaken is, we think, entirely sound in principle.' So he who lends his motor-car to a friend is not bound to ascertain its safe condition; but he who takes his friend for a drive apparently is so bound."
By law, the owner of any means of transport owes a duty of care to provide safe passage to fare-paying passengers as well as gratuitous persons who are carried to a specified destination. If the owner breaches this duty and the person suffers damages, the owner will be held responsible.
In the case of Agbenyega v GNTC  GLR 968, the plaintiff, a schoolboy aged thirteen, was ferried across the Volta River by the defendants' Launch, Auntie Dedei. He sustained serious injuries when his right foot was trapped as a result of the Launch moving backward suddenly while he disembarked.
He sued the defendants for damages for personal injuries caused by their negligence. The defendants contended that the accident occurred when the plaintiff was pushed by another child while they and some other children attempted to catch fish from the river.
The court held that there is no doubt that the agents or servants of the defendants knew of Agbenyega’s presence on the Launch as being within a class of persons (schoolchildren), who were known to have been on the Launch. There is no evidence that each of the schoolchildren on board the Auntie Dedei at the time—of whom the plaintiff was one—had been there by means of a ticket. But his presence on that Launch at that time, as well as that of each of the other schoolchildren, being known to the servants of the defendants, these servants as agents of the defendants, did impliedly undertake, gratuitously or otherwise, to perform the service of a contract of carriage by ferrying him across the Volta from the Sokpe bank to the Sogakope bank.
The court further held that the defendants, in the circumstances, owed the infant plaintiff this duty of care in the performance of this contract of carriage, right from the moment of embarkation until he had completely got off the Launch. The ramp from which he fell, was a part of the Launch. The fall occurred before he could land.
The court then concluded that the defendants were deemed to reasonably have foreseen the likelihood of the danger of a passenger falling off the ramp, in the absence of such sufficient reasonable facilities or precautionary measures or devices for the safe landing of passengers aboard the Launch, and, also the likelihood of an injury resulting from the absence of such reasonable measures.
They have failed to explain away the cause of the sudden move of the Launch at the material time. It was this sudden move that caused the fall of the plaintiff resulting in his foot being trapped under the side of the ramp which was a portion of the Launch. The accident, undeniably, did not occur after the infant plaintiff had completely reached safety off the ramp. The implied obligation of carrying safely a passenger extends from the time he is attempting to go on board to the time he completely disembarks from the premises (the launch).
The court, therefore, held that there was on the part of the defendants a breach of duty of care owed by the defendants to the passengers of whom the plaintiff was one, and that such breach was the cause of the accident, and that that accident resulted in the injuries he sustained.
It is clear that whether the passenger is a fare-paying or gratuitous one, the owner still owes a duty of care to ensure the safety while in the vehicle.