SANS ONI, J.—de Silva v. Qunawardena
Present: Sansoni, J., and L. B. de Silva, J.
A. B. C. DE SILVA and Another, Appellants, and A. L. DES. GUNAWARDENA, Respondent
S. C. 246-247/60—D. C. Colombo, 45853/M
Delict—Collision between two motor cars—Negligence—Burden of proof—Presumptionof liability arising from ownership of car—Liability of parent for wrongfulact of his minor child.
In an action for recovery of damages caused by a collision between twomotor cars, the plaintiff, even if he has been guilty of some negligence, isentitled to recover damages if the defendant’s negligence was the decisiveand effective cause of the collision.
The owner of the car which caused the accident is liable in the absence ofany evidence as to whether or not the person who drove it was acting as theservant or agent of the owner. This presumption of liability arising fromownership is applicable even if the driver wa9 a minor child of the owner.
.A.PPEAL from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with W. D. Ghmasekera and Sinha Basnayalce,for the 1st and 2nd Defendant-Appellants.
Colvin R. de Silva with M. L. de Silva, for the Plaintiff-Respondent.
Cur. adv. vult.
May 6, 1963. Sansoni, J.—
This is an action for damages filed by the Plaintiff against the driver(the Jst Defendant) and the owner (the 2nd Defendant) of a motor carwhich collided with a car which was being driven by the Plaintiff. Thecollision occurred at about 8.30 p. m. at the intersection of McCarthy Roadand Gregory’s Road. The Plaintiff was driving his Vauxhall car EY 4565along McCarthy Road towards Buller’s Road, while the 1st Defendant(a minor at that time) was driving his father’s (the 2nd Defendant)Jaguar car CY 3710 along Gregory’s Road towards Maitland Crescent.The point of impact appears to have been a little on the Buller’s Roadside of the intersection and about 18' 6" from where McCarthy Roadmeets Gregory’s Road as one travels from Horton Place.
The learned trial Judge has held that the collision was due entirely tothe negligence of the 1st Defendant and that there was no contributorynegligence on the part of the Plaintiff. He awarded the Plaintiff a sum ofRs. 50,000 as damages, He has also held that the 1st Defendant was at
R 1925—1867 (11/64)
SANSONI, J.—de Silva v. Gunawardena
the time driving the Jaguar car as an agent of the 2nd Defendant, and thatboth Defendants were jointly and severally liable to pay the damagesawarded.
It is common ground that where Gregory’s Road meets McCarthy Roadthe word “ Stop ” was painted in large white letters on Gregory’s Road,on either side of the intersection. Further, the Plaintiff approached theintersection on the right hand side of the 1st Defendant. As the learnedJudge has held, it was the plain duty of the 1st Defendant to have givenway to the Plaintiff, if necessary by stopping his car on Gregory’s Road.He should have made certain, before he entered the intersection, thatthere was no car entering it on his right hand side, because the Plaintiffhad the right of way. The 1st Defendant, as found by the learned Judge,saw the Plaintiff’s car approaching the intersection. Under these circum-stances the failure of the 1st Defendant to stop and let the Plaintiff’scar proceed as it had the right of way constituted negligence on the part ofthe 1st Defendant.
Mr. Jayewardene accepted the finding that the 1st Defendant had beennegligent. He submitted, however, that the learned Judge should havefound the Plaintiff guilty of contributory negligence winch disentitledhim to recover any damages. He relied most strongly on the Plaintiff’sadmission that when he arrived at the point where McCarthy Road metGregory’s Road, he drove through the junction without looking to eitherside. The Plaintiff’s explanation seems to be that when he approachedthe junction he slowed down, tooted his horn but got no reply from anyother horn, and then went straight on. He said that he was not aware ofany other car approaching the junction nor did he see the 1st Defendant’scar until it collided with the rear of his car. The 1st Defendant’s versionwas that before he came to the “ Stop ” sign, he applied his brakes,tooted his horn and changed down to third gear. When he had almostreached the intersection he saw the Plaintiff’s car coming very fast. Hebraked hard and swerved to the left, but could not avoid the collision.
The learned Judge, who was in the best position to assess the credibilityof the respective parties, has made a finding which I quote verbatim. Itis that “ the 1st Defendant came up Gregory’s Road at such an excessivespeed that even when he saw the Plaintiff’s car before he reachedthe e Stop ’ signal, he was unable to stop his car in spite of applyingbrakes. The brake marks indicate that in spite of the application ofbrakes the car proceeded a distance of 24 feet and was impeded only by-reason of its banging into the rear of the plaintiff’s car, and even thereafter -the car appears to;have proceeded a further 2 feet before it came to a halt -facing the lamp post. Obviously the Plaintiff reached the. intersectionbefore the 1st Defendant and he had proceeded a distance of 18' 6" and,almost crossed the intersection and got on to the McCarthy Road on the.other side before the .1st Defendant banged into him. This accident is-due entirely to the 1st Defendant not halting his car at the * Stop ’signal as he should have done and not giving the plaintiff his right of way
SANS ONI, J.—de Silva v. Ghmawardejut
as he should have done. As I stated earlier, both these things took placeon accouat of the excessive speed at which the 1st defendant was comingalong Gregory’s Road in his powerful Jaguar car. ”
The learned Judge’s finding just quoted by me is a finding that it was the1st Defendant’s negligence in driving up to this junction at a speed whichwas excessive in the circumstances which was the decisive and onlyeffective cause of the collision.
Let it be granted that the Plaintiff should have looked to his left and tohis right before he started crossing the intersection. If the 1st Defendanthad been driving at a reasonable speed at the time he approached the“Stop ” sign, he would have been able, as soon as he saw the Plaintiff’scar coming along McCarthy Road, to stop his car or at least to slow downsufficiently to enable the Plaintiff to cross the intersection before hehimself had crossed it. Instead of doing that, it is clear that he came at aspeed which was too high to permit him to stop his car or to slow downsufficiently to avoid colliding with the Plaintiff’s car. He braked and heswerved to his left, but he was going so fast that his right front mudguardand the right edge of his buffer hit the left rear wheel of the Plaintiff’s carand dented it inwards.
Many cases were cited to us on the question of negligence. I do notintend to refer to them bee?ube the circumstances of each case are peculiarto that case, but the principle to be extracted from the cases is clearenough. Even if the plaintiff has been guilty of some negligence, the1st Defendant’s negligence was the decisive and effective cause of thecollision and that is the case here. The Plaintiff is therefore entitled torecover damages.
The next point raised by Mr. Jayewardene was the liability of the 2ndDefendant. He was the owner of the car, and there was no evidence fromeither Defendant or from the Plaintiff as to whether the 1st Defendant wasdriving the car as a servant or agent of the 2nd Defendant. The 1stDefendant gave evidence but said nothing on this point. The 2ndDefendant gave no evidence, while the Plaintiff did not claim to knowanything about this aspect of the matter. In these circumstances, thelaw is clear that the mere fact of ownership of the car is some evidenceagainst the person who is the owner of the car that he permitted the carto be driven by his servant in the course of his employment or by hisagent within the scope of his authority. It is a circumstance from whichthe Court may draw an inference if the owner does not furnish the Courtwith further explanation. The cases of Barnard v. Sully1 and Hevritt v.Bonvin 2 refer to this presumption. Other cases on the point are referredto by Macintosh and Scoble in Negligence in Delict (3rd Edn.) p. 90.
Mr. Jayewardene argued that the presumption cannot be applied to acase where the driver is a minor child of the owner and he cited amongother authorities Conradi v. Wiehahn3. But even in such a case the rule
1 (1931) 47 T. L. R. 557.
*(1911) <7. P. D. 704.
a (1940) 1 K. B. 188.
SANS OKI, J.—de Silva v. Ghinawardena
set out in McKerron in the Law of Delict, 5th Edition, page 78, is that“ a parent cannot be made liable for a wrongful act committed by hisminor child, unless he expressly or impliedly authorised the act, or unlessthe child was acting as his servant or agent, or unless he was negligentin allowing or affording the child the opportunity of doing mischief Inthe absence of any facts from either Defendant, each of whom was in thebest position to say whether the 1st Defendant was driving as the servantor agent or not of the 2nd Defendant, I think this is a case to which thepresumption arising from ownership should be applied.
Finally, there is the question of damages. As a result of the accidentthe Plaintiff sustained the following injuries to his right hand, which havebeen referred to by the learned Judge in his judgment as follows :—
“ (1) a fracture of the base of the 5th metacarpal bone ;
a compound fracture of the base of the 4th metacarpal bone in
the right hand ; and
a fracture of the proximal phalanx of the middle finger.
As a result of the compound fracture of the base of the 4th metacarpalbone there was a shortening of this bone and a resulting depression ofthe 4th knuckle. This has resulted in the permanent disability to themiddle finger, 4th finger and 5th finger of his right hand. He is unableto bring these three fingers up to the palm and there is a limitation ofthe flexion of these fingers. Dr. Peiris’s evidence is that this is a per-manent disability and he cannot do long and delicate operations with hisright hand. Moreover he will be unable to play tennis which appears tohave been his recreation,55
The plaintiff is a doctor in Government Service who has practised hisprofession from 1943, and was 39 years old when this accident occurred.He has carried out different kinds of operations as a Surgeon, although hehas not specialised in any branch. He stated in evidence that it was hisintention to retire from Government Service and start a private practice inhis home town of Kalutara. As a result of the permanent disability henow suffers from, he will be handicapped and bis practice is bound tosuffer, because his patients will know about his disability.
The only question is the quantum of damages that should be awarded.The learned Judge has awarded Rs. 50,000. Mr. Jayewardene submittedthat this was grossly excessive, while Mr. de Silva said that there was noreason why we should interfere with the learned Judge’s estimate. I
I do not see why the Plaintiff should not be compensated for the lossof his freedom to choose a new way of exercising bis profession. He ishandicapped to the extent that he cannot do all the work a Surgeonshould be able to do. His power to earn is, to this extent, impaired. Heis not bound to continue in Government Service: if he had been, of course,the quantum of damages would be almost trivial. He has lost the right,which he formerly had, of earning his living in the best way possible.
SANSONI, J.—Kantnawathie v. Wilisindahamy
After careful consideration of such other cases as have come to ournotice, and the extent to which the Plaintiff’s practice of his professionwill he affected, I consider that a sum of Rs. 30,000 would be adequatecompensation.
I would therefore vary the decree entered in this case oy substitutingRs. 30,000 for Rs. 50,000 and with this variation dismiss the appealwith costs in both Courts.
B. de Silva, J.—I agree.
A. B. C. DE SILVA and Another, Appellants, and A. L. DE S. GUNAWARDENA, Responde