070-NLR-NLR-V-44-ABEYYEPALA-Appellant-and-RAJAPAKSE-Respondent.pdf
Abeyepala and Rajapakse.
289
1943Present: Soertsz S.PJ. and Keuneman J.
ABEYEPALA, AppeUant, and RAJAPAKSE, Respondent.
137—D. C. Colombo, 12,381.
Action for damages—Collision between bus at a standstill and motor car—Presumption of negligence.
In an action founded upon a collision between plaintiff's omnibuswhich was at a standstill and defendant’s motor car which ran into it frombehind there is a presumption of negligence and it is for the defendantto offer an explanation in negativing negligence.
T
HIS was an action for damages incurred by the plaintiff as a resultof defendant’s motor car colliding against plaintiff’s motor bus.
The plaintiff pleaded that the collision occurred through the negligenceof the defendant. The District Judge held that the burden of proof ofnegligence lay on the plaintiff and that he had failed to discharge it. Hedismissed plaintiff’s action.
N. Nadarajah, K.C. (with him Dodwell Gunawgrdana), for the plaintiff,appellant. The onus of proof has been wrongly placed on the plaintiff.
The plaintiff is entitled to sue for the loss of services of his' servantIf one road vehicle collides with another while the-latter is stationary or,to use a nautical term, “ at anchor ”, such an act is prima jade proof ofnegligence on the part of the driver of the moving car. The ruling inThe Amot Lyle a case, founded upon a collision between a vessel atanchor and one in motion, is applicable. See also Terrel on Law ofRunning Down Cases (1936 ed.), p. 22, paragraph (c) ; Gibb on Collisionson Land (1938 ed.) p. 17; Safenaumma v. Siddick et al.~.
The plaintiff is entitled to sue for the loss of services of his servant(the conductor) if the latter is injured, although he cannot sue if theservant had died. We have proved the medical expenses incurred by uson behalf of the conductor and can claim damages—Attorney-General v.Valle-Jones Admiralty Commissioners v. ss. Amerika
B. Wickremanayake (with him H. W. Jayewardene), for the defendant,respondent.—The plaintiff cannot recover damages for the medicalexpenses incurred by him on behalf of the conductor. In Attorney-General v. Valle-Jones (supra) the Crown was under a legal duty to incurthe expense in question by reason of certain regulations. Unless thereis a legal obligation on a person to spend on another, he cannot recoverthe expenses. There is no such obligation in the present case betweenthe plaintiff and the conductor.
On the question of negligence the burden of proof was on the plaintiff.The defendant gave a reasonable explanation, and the onus was on yheplaintiff to show that the explanation was false—(The Kite'; Rex v. Simonet al.".-
N. Nadarajah, K.C., in reply.—The Roman-Dutch law allows themaster an action for loss of services consequent on injury to a servant *
*L. R.(1917) A. C. 38.
‘i. R. {1933) P. D. 151 at 169-170.
• S. A. L. R. (1936) T. P. D. 2117.
L.'R. (1886) 11 P. D. Hi.
(1934) 37 N. L. R. 25.
L. R. (1935) 2 K. R. D. 209 at 215 et seg.
290
KEUNEMAN J.—Abeyepala and Rajapakse.
The case of Attorney-General v. Valle-Jones (supra) is considered inMacintosh and Scoble on Negligence in Delict (2nd ed.), p. 205. See alsoMackerron on the Law of Delict (2nd ed.), p. 150.
Cur. adv. vult.
April 16, 1943. Keuneman J.—
This was an action for damages incurred by the plaintiff as a result ofthe defendant’s motor car No. Z*—1651 colliding against the motor busNo. Z—5069 belonging to the plaintiff and also injuring the conductorof the bus. The plaintiff pleaded that the collision occurred through thenegligence of the defendant.
The evidence showed that the plaintiff’s motor bus was coming towardsColombo along Reid avenue, and halted at a bus halting place near thewicket gate on the side of the Royal College, and opposite the grand standof the Ceylon Turf Club. Certain passengers alighted and others enteredthe bus, which was at a standstill, when the defendant’s motor car raninto it from behind.
The District Judge held that the burden of proof of negligence layupon the plaintiff, and remarked that the two chief witnesses were unableto say what happened. This was due to the fact that they were facingforward, and could not see behind them. The District Judge also drewan inference adverse to the plaintiff, because of his failure to call theMotor Examiner, but in view of the fact that the defendant also failed tocall the Motor Examiner, I do not think the inference was justified. TheDistrict Judge added' that the plaintiff had failed to discharge the burdenof proof, and that his claim failed.
1 may add that the defendant tendered an explanation for the collision.According to him, his car which had been functioning efficiently, suddenlyat the psychological moment refused to function in re’gard to the footbrake, with the result that the car went forward without stopping. Onthis point the District Judge added the negative comment that he wasnot prepared on the evidence to hold that the defendant was speakingwhat is not true.
As regards the speed of the defendant’s car, the District Judge was notprepared to accept the statement of the defendant that he was going veryslowly, in view of the damage caused to the bus and of the injuries to theconductor. The District Judge thought that there was some considerablemomentum in the defendant’s car at the time of the impact.
There is one aspect of this case which the District Judge has failed toemphasise, and this has led to his misdirecting himself. That is that theplaintiff’s bus was at a standstill at, and had been halted for some timebefore, the collision. In The Arnot Lyle' it was held that in an actionfounded upon a collision between a vessel at anchor and one m motion,the burden of proof is on the owners of the latter to prove that thecollision was not occasioned by any negligence on their part. In Daviesv. Union Government" it was held that if a cyclist in broad daylightovertakes and collides with a pedestrian walking in the same directionas the cyclist in a public street devoid of all other traffic, there isa presumption of negligence, and the pedestrian is entitled to judgment
->£./?. (1SS6) 11 p. D. 114.
* S. A. L. JR. 11936) Ttansvaal Prov. and Local Divp. 19?
Paliamappar Chettiar and Amarasena.
291
if the cyclist gives an explanation not accepted by the Court or if he givesno explanation. Where he gives an explanation which is accepted bythe Court, or which may reasonably be true, negativing negligence,he will escape liability. In the present case the presumption of negli-gence is strengthened in view of the fact that the plaintiff’s bus was haltedat the side of the road.
I can see no reason why the rule laid down in The Amot Lyle caseshould not be extended to the case of a land collision. In the presentcase, I think there is a prima jade proof of negligence, and it is for thedefendant to offer an explanation which the Court may or may notaccept, or regal'd as reasonably true, in negativing negligence.
I am of opinion that the District Judge has failed to appreciate thismatter of the burden of proof, and the shifting of the burden, and in viewof his misdirection, his judgment cannot be sustained. I set aside thejudgment of the District Judge, and order that a new trial be held beforeanother District Judge in which till relevant matters will be fully con-sidered including any explanation tendered by the defendant. I thinkit is desirable that the Motor Examiner should be called by one or otherof the parties, but make no order on that point. I add that as regardsthe question of damages claimed by the plaintiff, the District Judge whoconducts the retrial should take into consideration the case of Attorney-General v. Valle-Jones' and any other relevant authorities that may becited to him.
The plaintiff-appellant is entitled to the costs of this appeal. Thecosts of the trial already held will be in the discretion of the DistrictJudge.
Soertsz S.P.J.—I agree.v
Set aside ; case remitted.