143-NLR-NLR-V-45-FERNANDO-Appellant-and-GUNAWARDENA-Respondent.pdf
HOWARD C.J.—Fernando and Gunawardena.
521
1954Present: Howard C.J. and de Kretser J.
• FEENANDO, Appellant, and GUNAWARDENA, Respondent.
19—D G. Kalutara, 22,603.
Hegligence—Action for damages caused toa passenger inbus—Collision
between bus and lorry—Burden of proof.
Plaintiff sued the defendant to recover damages for injuries receivedwhen the plaintiff was travelling in a motor bus driven by a servant ofthe defendant. Plaintiff was a passenger in the bus when it came intocollision with a motor lorry. The lorry had its rear door flap partlyopen and some bolt on the flap came into contact with the right-handside of the bus and broke the plaintiff's arm.
The defendant denied the allegation of negligence and pleaded that the'plaintiff had his arm protruding out of the bus at the time of the collisionand was therefore guilty of contributory negligence. The learnedJudge held that the plaintiff was not guilty of contributory negligenceand that the proximate cause of the injuries was that the two vehicleswere being driven too close to each other at a bend of the road and thedefendant’s driver not taking any steps to prevent an accident.
Held, that the burden of proof was upon the plaintiff and that the plain-tiff could not by merely proving the collision, the injury and damagestransfer the onus of proof to the defendant to establish that he haddone all he could have done with care, foresight and skill within allpossible human limits.
A PPBAL from a judgment of the District Judge of Kalutara.
N. Nadarajah, K.G. (with him 17. A. Jayasundera and S. E. J. Fernando),for the defendant, appellant.
H. V. Perera, K.G. (wirh him J. E. M. Obeyesekere), for the plaintiff,respondent.
Gur. adv. vult.
■October 27, 1944. Howard C.J.—
The defendant appeals from a judgment of the District Judge ofKalutara awarding the plaintiff Rs. 5,000 as damages for injuries receivedwhen the plaintiff was travelling in a motor bus driven by a servant of the■defendant. The plaintiff was, with several others, a passenger onMarch 8, 1941, in a motor bus going from Panadure to Adam’s Peak..About 4 or 4.30 a.m. the bus came into collision with a motor lorry nearNittambuwa on the Oolombo-Kandy road. The lorry had its rear doorRap partly open and some bolt on the flap had come in contact with theright-hand side of the bus, took off the hair knot of a lady seated next to theplaintiff and broke the plaintiff’s arm.. In deciding in favour of theplaintiff the learned Judge has held that the latter’s arm was fracturedt>y reason of the driver of the bus failing to exercise all possible care,-skill and foresight in carrying him. The defendant in his defence deniedthe allegation of negligence and further pleaded that the plaintiff had
522
HOWABD C.J.—Fernando and Gunawardena.
his arm protruding out of the bus at the time of the alleged collision andwas therefore guilty of contributory negligence. The learned Judge heldthat, although the plaintiff had his elbow on the window-sill of the bus-and £ little of it was protruding out, he was not guilty of contributorynegligence. He also held the proximate cause of the injuries was thatthe two vehicles were being driven too close to each other at a bend of theroad which was right-handed to the defendant’s bus and the defendant’s-di'iver not taking any steps to prevent an accident.
The burden of proof lay on the plaintiff. The maxim of res ipsaloquitur does not apply to a case of this kind. In other words the plaintiffcould not merely prove the collision, injury and damages and transfer the-onus of proof to the defendant to establish he had done all he eoulda havewith care, foresight and skill within all possible human limits. Thegeneral principle to test liability where negligence is alleged, was-stated by Willes J. in Daniel v. The Metropolitan Railway Company1 asfollows : —
“It is necessary for the plaintiff to establish by evidence circum-stances from which it may fairly be inferred that there is reasonableprobability that the accident resulted from the want of some precautionwhich the defendants might and ought to have resorted to: and I go-further, and say that the plaintiff should also show with reasonablecertainty what particular precaution should have been taken
Tn the present case the plaintiff alleges that the bus and lorry were driventoo close to each other and the negligence of the driver of the bus consistedin his driving it too close to the lorry. The question as to whether thedriver of the lorry was also guilty of negligent driving is not material.The only question is whether the driver of the bus was negligent in nothaving driven it further to the left so as to have avoided any possibilityof a collision. Although it is not quite clear, it would appear from the-evidence that the flap or open door of the lorry grazed the bus. The case putforward on behalf of the plaintiff has not been prepared with the carethat one would expect in a case of this nature. There was no definiteevidence as to the position of the flap and its method of attachment to-the body of the lorry. The same uncertainty existed with regard to thebolt. The Court was not supplied with plans of the road showing itswidth at the particular spot where the collision occurred. Nor was thereany evidence of the dimensions of the two vehicles that came into collision.Nor was there any evidence as to the speed with which the lorry cameround the bend. The evidence as to the exact position of the bus on theroad when the collision took place is vague and unsatisfactory. Afterthe accident no doubt it was found that the bus was more to the centrethan the lorry. It is contended that the driver of the bus seeing a lorry-approaching should have realized that there might be a rear door flapopen and hence the swinging of the lorry round the bend would bring thedoor into contact with the bus. Even then the accident would not have-occurred if the bolt had not come in contact with the plaintiff’s arm.So we have the further contention that the driver of the bus should havecontemplated the possibility of a bolt being attached to the flap. There
1 (1868) Z>. R. 3 C. P. 222.
HOWARD C. J.—Fernando and Gunawardena.
523
again the learned Judge has found as a fact that a little of the plaintiff’selbow was outside. Presumably this was another possibility that shouldhave been contemplated by the driver. In these circumstances I am ofopinion that the negligence of the driver Of the bus has not been established.In Simon v. The London General Omnibus Go. Ltd.1 the facts were asfollows : —The plaintiff was a passenger on the top of one of the defendants ’omnibuses. The driver of the amnibus, in turning out of one street intoanother, drove the omnibus close to the kerb to avoid an electric tram-car which was passing in the same direction, and while passing an electriclight standard, which was on the pavement, the jolt of the omnibusgrating round the kerb caused the plaintiff’s arm to come in contact witha fire alarm finger-post fixed to and standing out from the electricstandard. The plaintiff’s arm was at the time projecting from theamnibus, but the fire alarm finger-post did not project over but cameflush with the kerb. In an action to recover damages for negligence therewas no evidence that the driver either saw or knew of the fire alarmfinger-post. It was held that, as it was not shown that there was an•obstruction of such a nature that with reasonable care the driver oughtto have seen it and ought to have realized that it would or might hit apassenger on the omnibus, there was no evidence of negligence. So in thepresent case I do not think it can be said that the driver ought to haveseen the bolt or realized that a bolt would hit the protruding arm of apassenger in the bus. In Hase v. The London General Omnibus Go. Ltd.,2the facts were as follows:—The plaintiff was a passenger on the top ofone of the defendants' omnibuses. In consequence of the road alongwhich the omnibus usually travelled being closed, .the driver of theomnibus had to pass through side streets, and in .turning the corner of•one of the side streets the omnibus was driven close to the kerb, so thatthe top of the omnibus, owing to the camber of the road, projected overthe foot pavement. A street lamp stood at the comer with a small nonfirm projecting from it, but not sufficiently far to extend over the road-way. While the omnibus was being driven round the corner the iron armstruck the plaintiff on the chest and injured him. There was no trafficwhich prevented the omnibus from being driven further away from thekerb. In an action in the County Court to recover damages for negligencethe Judge found that the driver did not. see the projecting arm, and thathe was not guilty of negligence in not having seen it and in having driven•close to the kerb, and he gave judgments for the defendants. It was heldthat unless the driver saw the small projecting arm or unless by exercisingreasonable care he might have seen it, it could not be said he was negligent.So in the present case if the driver did not see the bolt or might not haveseen it by the exercise of reasonable care, I do not think he can be saidto have been negligent.
For the reasons I have given the appeal is allowed and the plaintiff’saction dismissed with costs in both Courts.
be Kretser J.—I agree.
Appeal allowed.
1 23 T. L. R. 463.
2 23 T. L. R 616.