Sri Lanka Law Reports
(2006) 2 Sri LR
MAHIPALA AND OTHERSVS.MARTIN SINGHOCOURT OF APPEAL.
CA 1014/2003 (F).
JUNE 23, 2005.
Road Accident-Army Vehicle-Cyclist injured- Negligence ?- No valid drivinglicence- Motor Traffic Act as amended by Act, No. 21 of 1981- section 149,section 151 (3)- Effect of a plea of guiltin a criminal case relevant in a civilmatter ? – Acceptability ?- Damages- Assessment thereof- Circumstances.
The plaintiff-respondent instituted action against the defendant- appellantsclaiming jointly and severally a sum of Rs. 300,000 as damages. The positionof the plaintiff-respondent was that, he was riding his bicycle and was knockeddown by an army truck driven by the 1st respondent. In the Magistrate’s Courtthe defendant-appellant was charged mainly for driving negligently, recklesslyand dangerously without care or regard to the other road users and knockingdown the injured, causing grievous injuries to him. The trial Court awardedhim Rs. 300,000 as damages.
"Whether a judgment or conviction in a criminal case is relevant in a case ina Civil Court in respect of the same matter, and if so what effect it can have onthe consideration of the civil matter".
The defendant's unqualified plea of guilt is most relevant and admis-sible as evidence of negligence on his part. The plea of guilt in acriminal court is admissible in civil proceedings, and when the 1stdefendant pleaded guilty to the charges of reckless and negligentdriving under the Motor Traffic Act, it has legal proof in the legal sense.
It appears that the defendant-appellant had failed to exercise thatdegree of care the situation at the time of the accident demanded -his negligence was proved.
Mahlpala and others vs. Martin Singho
In an action for personal injuries the plaintiff is entitled to claim com-pensation for (1) actual expenditure and pecuniary loss (2) disfigure-ment, pain and suffering and loss of health and amenities of life (3)future expenses and loss of earning capacity.
The trial Judge is not wrong in awarding a lump sum of Rs. 300,000as damages to the plaintiff. Damages awarded will have to be in-creased taking into account the inflation in the economy and the de-preciation of the Sri Lankan currency, thus legal interest should beadded to the lump sum awarded from the date of judgment till pay-ment in full.
The damages to be awarded is calculated on the assumed loss tothe victim in money terms at the time of the trial, but the monetary losswill increase with inflation as inflation leads to increase in wage lev-els.
Appeal from the judgment of the District Court of Anuradhapura.
Cases referred to:
Hollington vs. Hewthorn Ltd. 1943-1 KB 587, 1943 2 All ER 35.
Mickelberg vs. Director of the Perth Mint 1986 WAR 365
Sinniah Nadarajah vs. Ceylon Transport Board 1978- 79 – 2 Sri LR 48
B. Meenakshisundaram Cheety vs. Kuttimalu 1958 Kerale 38.
Reyneke vs. Mutual and Federal Insurance Co. Ltd., 1991 – 3 SA 412(W) at 419(1)
V. de Abrew SC for defendant-appellant.
K.Patabendige for plaintiff-respondent.
Cur. adv. vult.
WIMALACHANDRA, J.This is an appeal from the judgment of the learned District Judge ofAnuradhapura dated 24.03.2003. The plaintiff-respondent (plaintiff) insti-tuted this action against the defendants-appellants (defendants) claimingfrom them jointly and severally a sum of Rs. 300,000/- comprising of gen-eral damages, special damages, loss of general health and the amenitiesof life, loss of future expenses and loss of earning capacity. The learnedDistrict Judge awarded the said sum of Rs. 300,000/- to the plaintiff as
Sri Lanka Law Reports
(2006) 2 Sri L R.
damages. It is from this order that the defendants-appellants (defendants)have filed this appeal.
The plaintiff alleged that on or about 14.09.1993, whilst he was ridinghis bicycle on the left side of the road at Puliankulama, he was knockeddown by the truck bearing number 6306 belonging to the Sri Lanka Army,driven by the 1st defendant. The plaintiff raised the issue Nos. 1,2 and 3as to whether the said accident was caused due to the negligence of the1st defendant.
The evidence of the plaintiff reveals that at the time the accident tookplace, he was riding his bicycle along the Jaffna-Anuradhapura road, to-wards Anuradhapura, on the left hand side of the road and the truck wasdriven by the 1 st defendant on the same side of the road. It had come frombehind the plaintiff. Admittedly at the time of the accident this vehicle wasbeing driven by the 1 st defendant, acting within the scope of employment.
What is required firstly is a consideration of the evidence in order toascertain whether there has been negligence on the part of the driver ofthe vehicle, the 1 st defendant. The plaintiff said the vehicle that came frombehind knocked him on the right hand and when he fell down, the vehiclewent over his body. On the question as to which side of the vehicle struckwhich part of the plaintiffs body, there does not appear to be any discrep-ancy between his evidence and the statement he made to the Police. Thelearned District Judge has considered the evidence of the witness,Ariyapala, who had been with the plaintiff, riding his bicycle in front of theplaintiff. The learned Judge has correctly analysed the evidence ofAriyapala, who had corroborated the evidence of the plaintiff as to theoccurrence of the accident. The learned Judges states thus :
A further matter that appears to be relevant is that at the time of theaccident the 1 st defendant did not possess a valid driving license issuedby the Commissioner of Motor Traffic. He said he has only a driving licenseissued by the Army. However, he was unable to produce any documentaryevidence to establish that he had a valid driving license issued either bythe Commissioner of Motor Traffic or by the Army. In his evidence the 1 stdefendant made the following admissions (vide page 119 and 120 of theAppeal Brief).
Mahipala and others vs. Martin Singho
Furthermore his negligence was quite apparent in that, in the instantwhen he saw a bus approaching from the opposite direction he had tried toovertake the cyclist who was in front instead of waiting till the bus passed,without paying attention to the cyclist and other users of the road. Afterthe accident, he had stopped his vehicle about hundred feet away from theplace of the accident. As a reasonable prudent man he should have takenprecautions to avoid any collision when he was overtaking the plaintiffsbicycle, which was on the left side of the road in front of his vehicle. Hewould have foreseen the possible harm to the other road users when hewas overtaking them. It appears that he had failed to exercise that degreeof care the situation at the time of the accident demanded.
A further matter that appears to me to be relevant is that the defendantpleaded guilty to charges under the Motor Traffic Act (Cap 203 of SriLanka Legislative enactments) for negligent driving. The question that arisesis whether a judgment or conviction in a Criminal Court is relevant in acase in a Civil Court in respect of the same matter and if so, what effect itcan have on the consideration of the civil matter.
The 1 st defendant was charged in respect of the said accident underthe Motor Traffic Act (Cap 203) as amended by Act, No. 21 of 1981 andAct, No. 40 of 1984, for failure to report an accident, for negligent driving inbreach of section 151 (3) and for failure to avoid an accident in breach ofsection 149(1) of the Motor Traffic Act. The main charge was driving thevehicle bearing No. g. k>. 6306 negligently, recklessly and dangerously,without care or regard to the other road users and knocking down thecyclist, Martin Singho, causing grievous injuries to him. The accused (1 stdefendant) tendered an unqualified plea of guilt to all charges, whereuponthe accused was ordered to pay Rs. 600 as State costs. [Journal Entrydated 23.08.1995 of the case record of M. C. Anuradhapura case No.6648 (page 187 of the Judge’s brief)]
The 1 st defendant’s plea amounted to an admission that he drove theArmy truck bearing No. g. ©. 6306 on that occasion negligently, recklessly
Sri Lanka Law Reports
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and dangerously, without care or regard to the other road users, at anexcessive speed and lost control of the said vehicle and knocked downthe cyclist, Martin Singho, causing grievous injuries to him. The 1stdefendant's unqualified plea of guilt is most relevant and admissible asevidence of negligence on the part of the 1 st defendant.
The learned State Counsel contended that a plea of guilt in a criminalcase has no effect on the consideration in a civil matter. The learned StateCounsel heavily relied on the unreported Court of Appeal judgment in CANo. 146/91 (F)CA minutes of 29.10.1996. In this case Justice Edussuriya,held that a plea of guilt in a criminal case does not establish negligence ina civil action. The Court of Appeal of the United Kingdom in Hollington Vs.Hewthon Ltd.(1> held that evidence of a conviction was inadmissible insubsequent proceedings. However the full Bench decision in WesternAustralia in MickelbergVs. Director of the Perth Mint121, refused to followthat decision, and held, evidence of a prior conviction is admissible.
The Supreme Court of Sri Lanka has also held that a plea of guilt in acriminal court is admissible in civil proceedings. In the Supreme Courtcase of Sinnaih Nadarajah Vs. Ceylon Transport Board<3> it was held thatwhere the driver of a vehicle is sued along with his employer for the recoveryof damages resulting from an accident in which the plaintiff suffered injuriesby being knocked down, a plea of guilt tendered by the driver, when chargedin the Magistrate’s Court in respect of the same accident, is relevant asan admission made by him and ought to be taken into consideration bythe trial judge in the civil suit. Wimalaratne, J. who delivered the judgmentin this case referred to the aforesaid case of Hollington Vs. Hewthon andCo. Limited (supra) and said (at 52),
" In Hollington Vs. Hewthorn & Co. Ltd., (supra) aconviction of one of the defendants for careless drivingwas held to be inadmissible as evidence of his negligencein proceedings for damages on that ground against himand his employer. But had the defendant before theMagistrate pleaded guilt or made some admission ingiving evidence that would have supported the plaintiffscase, this could have been proved but not the result of
the trial! per Goddard, L. JThe 2nd defendant's
plea of guilt in the Magistrate's Court was, therefore, mostrelevant and to have been taken into consideration bythe learned Judge in assessing the plaintiff's case"
The law in regard to this is explained by Ratnalal & Dhirajalai in 'TheLaw of Evidence", 19th edition at page 185, with reference to Indian cases,as follows:
Mahipala and others vs. Martin Singho
"It is a well-recognised principle of law that a convictionin a criminal case is no evidence of the facts on whichthat conviction was based in a civil case in which thosefacts are in issue or form the subject-matter of the suit.
But the authorities are clear that, when a conviction isbased on a plea of guilty, that plea is relevant and toprove in the judgment in the criminal case is admissiblein evidence in the subsequent civil suit in which the factsgiving rise to the charge are in issue or form the subjectmatter of the suit."
Meenakshisundaram Cheety Vs. Kuttimalu<4)-
In assessing the plaintiffs case the learned Judge has considered theplea of guilt of the 1 st defendant in the case filed against him under theMotor Traffic Act for negligent driving in breach of section 151 (3) of theAct, by committing one or more of the grounds of the negligent actsdescribed in the charge. The 1st defendant's plea of guilt is most relevantand the learned Judge has correctly taken that into consideration. In criminalproceedings the prosecution must prove its case beyond reasonable doubt.However in civil proceedings a balance of probability is sufficient to decidethe case in favour of the plaintiff. The plaintiff is not required to demonstratehis case. When the 1 st defendant pleaded guilty to the aforesaid chargesof reckless and negligent driving under the Motor Traffic Act, in theMagistrate's Court, it has legal proof in the legal sense.
The 1st defendant in his evidence said that he did not know how theaccident happened. In the absence of any explanation as to how theaccident occurred, the reasonable inference that could be arrived at is thatthe accident was caused due to the negligence of the defendant. He didnot give any evidence to show that he took all reasonable precautions toavoid the accident.
The only question which remains to be decided is the measure of damages.R. G. Me Kerron in 'The Law of Delict", 6th edition at page 209 states thus:
"By the measure of damage is meant the standard ormethod of calculation by which the amount of damage is
to be assessedwhere the injuria is clear,
substantial damages will as a rule be given, although noactual damage is proved."
With regard to personal injuries, Mckerron, explains thus :
"In an action for personal injuries the plaintiff is entitled to claimcompensation for:
Sri Lanka Law Reports
(2006) 2 Sri LR.
actual expenditure and pecuniary loss
disfigurement, pain and suffering, and loss of health and amenitiesof life,
future expenses and loss of earning capacity."
At the time of the accident, the plaintiff was 58 years old and he wasemployed as a tractor dirver. This is borne out by the evidence of his wifeand Ariyapala. In the absence of evidence to the contrary it can be admittedthat he was employed as a tractor driver at the time of the accident. Itcould be assumed that if the plaintiff was not seriously injured, he wouldhave utilised his earning capacity until normal retiring age. The plaintiffsaid he was drawing a salary of Rs. 2,000 per month employed as atractor driver. The damages awarded is calculated on the assumed loss tothe victim, in money terms, at the time of trial. But the monetary loss willincrease with inflation as inflation leads to increases in wage levels.
The learned District Judge has also considered the loss of generalhealth, pain and suffering and the loss of amenities of life. He has discussedthis aspect of the matter, giving the main points in summarized form in thefollowing manner:
According to the Medico-Legal Report of the plaintiff produced marked'P8' at the trial, the nature of the injuries sustained by the plaintiff are asfollows:
Crush injury in the lower abdomen, pelvic region and hip region
abrasion over right upper thigh
abrasion over right hand elbow thigh
multiple pelvic bone fracture
the bladder was raptured
Urethra was lacerated
The Judicial Medical officer, Dr. Thennakoon who had examined thevictim said that he will suffer latent physical conditions consequent uponthe accident. In his evidence he said : (wde-page 95 of the Appeal brief).
Mahipala and Others vs. Martin Singho
Dr. Thennakoon further said that already six surgical operations havebeen performed on the victim.
The plaintiff can claim compensation not only for the physical injurythat had been occasioned by the accident and its aftermath, but also forthe inconvenience and loss of amenities. This includes the deprivation ofthe ability to participate in normal activities in day to day life. This mayalso include the deprivation of sexual pleasure, mental suffering andfrustration resulting from the victim's inability to lead a normal life. In theinstant case the Medical Officer who had examined the plaintiff said, as aresult of the injuries sustained by him he may have to suffer for the rest ofhis life.
Burchell in "Principles of Delict", Cape Town, Juta & Co. (1993) at page136 has this to say on loss of amenities of life-
"The legal concept of amenities of life comprises all the
factors which go to make up an enjoyable human life
As Claasen, J., in Reyneke Vs. Mutual and Federal InsuranceCo. Ltd.<5> said :
'The amenities of life flow from the blessings of an uncloudedmind, healthy body, sound limbs and the ability to conductunaided the basic functions of life such as running, eating,reading, dressing and controlling one's bladder and bowels."
The plaintiff after being injured by this road accident due to the negligenceof the 1 st defendant is no longer able to control the passing of urine andrendered impotent. Thus the injuries sustained by the plaintiff have deprivedhim of amenities of life.
The learned District Judge had considered the plaintiffs pain andsuffering, loss of amenities of life and loss of earning capacity and awardeda lump sum of Rs. 300,000. By their very nature various forms of non-
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patrimonial loss such as pain and suffering or loss of the amenities of lifeare difficult to translate into monetary terms with precision. So it is notunusual to assess together as one sum the computation of damages forpain and suffering and loss of amenities of life. In awarding a lump sum asdamages when the wrong complained of constitutes personal injuries, it isdifficult to assess damages on a logical basis. In this regard Mckerron in"The Law of Delict" at page 114 has this to say:
"The damages recoverable under second head,(disfigurement, pain and suffering loss of general healthand the amenities of life) cannot be assessed on anyarithmetical or logical basis. There are no scales by whichpain and suffering can be measured, and there is norelationship between pain and money which makes itpossible to express the one in terms of the other with anyapproach to certainty. The usual method adopted is totake all the circumstances into consideration and awardsubstantially an arbitrary sum."
In the circumstances, it is my considered view that the learned DistrictJudge is not wrong in awarding a lump sum of Rs. 300,000 as damages tothe plaintiff.
It is to be noted that the damages awarded is calculated on the assumedloss to the plaintiff, in money terms, at the time of trial. This action wasinstituted on 23.05.1995 and the judgment was delivered on 24.03.2003.Accordingly, the damages awarded to him by the District Court willhave to be increased taking into account the inflation in theeconomy and the depreciation of the Sri Lanka Currency. Thereforein my view legal interest should be added to the aforesaid sum ofRs. 300,000 from the date of the judgment until the payment is madein full.
On a consideration of the totality of the evidence, oral and documen-tary, led in this case, it is my considered view that the learned Judge hascome to a correct finding. Accordingly, I see no reason to interfere with thefindings of the learned District Judge. For the reasons given in this judg-ment, I dismiss the appeal with costs. The plaintiff is entitled to recoverthe damages awarded by the District Court with legal interest until payment in full.
BALAPATABENDI, J.— I agree.