G. C. I. DE SILVA and another, Appellants, and D. E. R. HAPUARATCHI and another,

033-NLR-NLR-V-74-G.-C.-I.-DE-SILVA-and-another-Appellants-and-D.-E.-R.-HAPUARATCHI-and-another.pdf


Dc Silva v. Hapuaralchi
121
1970 Present: H. N. G. Fernando, C.J., and Saroerawiekrame, J.
G. C. I. DE SILVA and another, Appellants, and. T>. E. R.HAPUARATCHI and another, Respondents
,S'. G. 601/66 (F)—D. C. Colombo, 60291/21'
Delict—Running down case—Negligent driving of motor car by minor son u-ho lives
with his father and is dependent on him—Car owned by the father•—Inability
of the father for the son's negligence—Quantum of damages.
Whore, in a running clown case, (ho evidence establishes that the car whichwas clrivon negligently was driven with the express authority of t-ho minerof the car, the owner will not bo held liablo for the negligent driving unless theevidence also justifies t-ho conclusion that tho car was driven on the owner’sbehalf. Tho moro giving of authority to drivo does not by itself establishtho ossontial fact that there was authority to drive on the owner's behalf.
Tho owner, howovor, will be held liablo if he fails to repel tho presumptionthat tho ownership of a vehicle furnishes prima facie evidence that the negligentdriver was either the ownor himself, or some servant or agent of his.
Tho defendant’s minor son, aged 19, asked his father one morning whetherho could “have the (father’s) car for a few minutes”, and the requesb wasgranted. A little while later, the plaintiff (aged about 15) was injured inconsequence of the negligent driving of tho car by the defendant’s son.Although the defendant stated in evidonco “ I did not send my son on anyerrand of mine. He took the car for his own purposes”, the evidence establishedthat the son, who was a student in a fashionable area in Colombo, was maintainedby and living with the dofondant and that ho used to drive tho car off and on.Tho son, when ho gave evidence, did not state that the actual purpose forwhich ho used tho car at (lie time of tho accident fell outside the scope of thefather’s duty to maintain his son.
Held, (hat tho defendant was liablo for tho negligent driving of his car byhis minor son.
Held further, that tho trial Judgo’s award of Its. 90,000 as damages wasexcessive in the circumstances of the present case ancl should bo reducocl toa sum of Its. 15,000. Dias v. Silva (55 N. L. It. 7) distinguished.
Appeal from a judgment of the District Court, Colombo.
Ranganalhan, Q.G., with M. M. K. Subramaniam and B. A. R.Cctndappa, for the defendants-appellants.
W. Jayeuardene, Q.O., with L. V. R. Fernando, for the plaintiffs-respondents.
Cur. adv. intU.
lxxiv—6
1*K -1071, 2,255 (0/71)
122
U. jtf. G- FERN/VNDO, C.J.—De Silva v. llapuaratchi
January 29, 1971. H. N. G. Ferxa^do, C.J.—
About 8 a.m. on the morning of March 9th 1962, the defendant’sminor son (then aged 19) asked his father whether lie could "havethe (father’s) ear for a few minutes ”, and tin’s request was granted.About 8.30 a.m. that morning, the oar while being driven by thedefendant’s son knocked down and injured the plaintiff. In this actionfiled against the defendant, the District Judge held that the plaintiffwas injured in consequence of the negligent driving of the car, and thatfinding has not been challenged in appeal. But the decree awardingdamages in Rs. 30,000 against the defendant has been challenged ontwo other grounds, firstly that the defendant was wrongly held liablefor the negligent driving of the car by his minor son, and secondly thatin any event the award of damages was excessive.
The references to various decisions as to the liability of the ownerof a vehicle driven by a person other than his servant, which counselon both sides made, have assisted me to appreciate that the solutionto the problem in consideration is to be found in 2 or 3 decisions of theCourts in England.
In Barnard v. Sully 1 it was decided, following an unreported caseof 1926, that proof of the ownership of a vehicle furnished prima facieevidence that the vehicle was at the material time being driven by theowner, his agent or servant. In that particular ease the onljr evidenceavailable was that the defendant owned the vehicle which had beennegligently driven and there was no indication as to the identity of theperson who drove it or as to the purpose for which it was driven. Thedefendant was held liable upon the prima facie evidence.
The ease of Ilf wilt v. Boutin – is of special interest and importance.The evidence established that the minor son of the owner had beenordered not to drive the owner's car without the permission of the latteror of his wife, that on the particular occasion the wife in the owner’sabsence gave the son permission to drive th’c car, that the son’s purposewhich was known to the wife was to convey some of the son’s friendsto some destination, and that the journey was of no concern to the owneror his wife. The Court of Appeal referred to the decision in Barnardv. Sully in the following terms :—
“ It is true that if a plaintiff proves that a vehicle was negligentlydriven and that the defendant was its owner, and the Court is leftwithout further information, it is legitimate to draw the inference thatthe negligent- driver was either the owner himself, or some servant oragent of his : (Barnard v. Sully) ; but in the present case all the factswere ascertained and the judge was not left to draw an inference fromincomplete data. ”
1 1931 Times L. R. 537.
3 (1010) 1 A*. B. JSS.
– H. N. G. FERNANDO. C.J.—De Silva v. Ttapuaratclii
123
(lu Parcq L. J. made the following further observations :—
“ The driver of a car may not be the owner’s servant, and theowner will be nevertheless liable for his negligent driving if it be provedthat at the material time he had authority, express or implied, todrive on the owner’s behalf. Such liability depends not on ownership,but on the delegation of a task or duty. ”
“In Parker v. Miller this Court differed from a Divisional Court as tothe effect of the evidence, but not, apparently, as to the law. Thereport is meagre, but it would seem that the defendant, who had beenfaking a friend and the friend’s daughter for a drive, got out ofthe car and permitted or requested the friend to drive himself andhis daughter home. The County Court Judge whose decision onquestions of fact was of course not. open to review, must, I think,have drawn the inference that the defendant had delegated thetasks of conveying the female passenger to her destination and oflooking after the car to his friend, who was therefore in charge of thecar as his agent, and not merely as a bailee. ”
“ If, for instance, a father consents to his young son inviting aguest to the family home, and then permits him to use the father’scar for the entertainment or convenience of the guest, it may well be ajustifiable conclusion that the son is driving for and on behalf of thefather. Ultimately the question is always one of fact. ”
“ Neither the appellant nor Madame Bonvin was responsible forthe welfare of the girls, and I am not satisfied that Madame Bonvineven approved of the journey, much less that she regarded itsperformance as a duty to be delegated to her son. The plaintiffhas failed to show more than a bailment of the car by the appellantto the person responsible for driving it negligently. ’’
The learned District Judge who tried the instant case appears to haverested his decision against the defendant on the mere fact that in thiscase the owner, the defendant, had given his minor son express authorityto drive the car on this particular occasion ; and if the Judge did so,he was clearly wrong, for the mere giving of authority to drive doesnot by itself establish the essential fact that there was authority to driveon the owner’s behalf. The decision can therefore be upheld only if theevidence justifies the conclusion that the car was driven on this occasionon the owner's behalf.
The judgment in Hewitt v. Bonvin was applied by the Privy Councilin the case of Rambarran v. Gurriicharran1. In that case, it was establishedby the evidence that the owner of the car neither drove it himself, nor
1 (1070) 1 A. E. n. 749.
m
H. N. G. FERN'AXDO, C.J.—De Silva v. Ilapuaralchi
employed a paid driver for the car. Three of the defendant’s son3 haddriving licences, and one or other of them used to drive the owner whenthe latter required the use of the car for his own purposes. The ownergave evidence of the specific purposes for which he would thus use thecar, and stated that on the occasion when the accident occurred the carwas not being driven for any of these purposes. He stated also that anyof the three sons who were licensed drivers had authority to use the carfor their own personal purposes. On the relevant occasion, whichoccurred on a Sundajr, the car was driven by one of these sons, and afterthe accident a woman and four other persons were seen to get out ofthe car.
The Privy Council held that on this evidence the owner repelledthe inference arising from his ownership that the car had been drivenby his servant or agent. In reaching this conclusion their Lordshipsstated as follows :—
“ The appellant, it is true, could not, except at Jiis peril, leavecourt without any other knowledge than that the car belonged tohim. But he could repel any inference, based on this fact, that thedriver was his servant or agent in either of two ways. One, by givingor calling evidence as to Leslie’s object in making the journey inquestion, and establishing that it served no purpose of the appellant.Two, by simply asserting that the car was not being driven for anypurpose of the appellant, and proving that assertion by means ofsuch supporting evidence as was available to him. If this supportingevidence was sufficiently cogent and credible to be accepted, it isnot to be overthrown simply because the appellant chose this way ofdefeating the respondent’s case instead of the other. Once he hadthus proved that Leslie was not driving as Jiis servant or agent, thenthe actual purpose of Leslie on that day was irrelevant. ”
In looking for assistance from the cases cited above, I bear in mind theobservation in Jlcuitl v. Botnin that the question for decision in theinstant case, which is whether the defendant’s son drove the car on thisoccasion on behalf of his father, is ult imately one of fact. The defendantstated in evidence “ I did not send my son on any errand of mine. Hetook the car for his own purposesHe was a student . I was maintain-
ing him and lie was living with me. He was dependent on me. He
did not tell me where lie wanted to go in the carHe used to drive
tin's car off and on. He does not drive the car on my errands. He may
have driven my wife along. The petrol is paid for by meI did not
ask the purpose for which1 lie wanted the car ”. The defendant’sson stated in evidence “ on the morning of 9th March I had the use ofmy father’s carI had two of my friends in the car. ”
It will be seen that the defendant could not have known and did not infact know the purpose for which the car was used, and that his statement“lie took the car for his own purposes ” was thus merely an inference
H. N. G. FERNANDO, C.J.—Ve Silva v. Hapuaralchi
125
and not a statement of fact. The son’s statement “ I had the use ofthe car ” does not in my opinion negative the possibility that the purposefor which he used the car may have been to go to the Pembroke Academy(at which he was a student), or for some other purpose falling within thescope of a father’s duty to maintain his dependent children. One canthink of other such purposes, e.g., a visit to a doctor, the purchase ofnecessaries, etc. In fact, although the son was the best person andperhaps the only person who could specify the purpose for which he usedthe car, he did not choose to state that purpose to the Court. In theSouth African case Goosen v. Stevenson1 the Court referred with approvalto the English case of Barnard v. Sully and applied the principle stated inUnion Government v. Sykes2 “the important point is that less evidencewill suffice to establish the prima facie case where the matter is peculiarlywithin the knowledge of the opposite party ”. Considering that thedefendant’s son did not state to the Court the actual purpose for whichhe used the car, despite his obvious knowledge of that purpose, the DistrictJudge was in the language of the judgment in Barnard v. Sully left todraw an inference from incomplete data.
In Hewitt v. Bonvin it wa3 established beyond doubt that the car wasused by the minor son for a purely private purpose which could not in thecircumstances be regarded in any way as a purpose for which the ownermaintained the car. In the case recentlj' decided by the Privy Counciltire owner was able to establish that, although he was unaware of theactual purpose for which the car was used by his son, it could not havebeen used for any of the known purposes for which it was ordinarily usedby the owner or on his behalf. The owner was thus able to negative thepossibility that the son was his agent. In anjr event, there was nothingto show that the son in that case was a minor dependent on the owner.
In considering a question of fact such as this, it is legitimate to takeinto account the practice among residents in Colombo particularly inthe city’s more fashionable areas. It is well known that one importantpurpose for which cars are maintained is for their use to convey minorchildren to educational institutions, for visits to dentists, for the purchaseof books and necessaries, for music lessons, etc. Ordinarily if a paiddriver is employed it would be Jus duty to drive the car on such occasions.Indeed the traffic jams which occur daily outside large schools in the cityfairly indicate that if a father owns a motor car his children would rarelyutilize public transport.
In these conditions, which differ so much from those in a country likeEngland, it is only reasonable to hold, in the absence of evidence to thecontrary, that if a car is used for tjie conveyance of the children of theowner for any purpose such as one of those envisaged above, then it is .used for a purpose for which its owner maintains it, that is to say in thecourse of his duty as a parent to his dependent children.
.- 1 (1932) T. P. D. 223.* (J913) A. JD. 113. .
!•*K 4071(8/7:1)
126
H. N. G. F.ERN’/lNT)0> C.J.—De Silva v. Uapuaratchi
Counsel for the defendant argued with utmost confidence that a motorcar which conveys its owner’s child to school is used for a purpose of thechild, and cannot therefore be regarded as being used on behalf of theowner. The fallac3r here lies in the reasoning that the fact of the child’spurpose being served automatically negatives an user on his father’sbehalf. If that reasoning be correct, there is a distinction between onecase in which a father’s car conveys a studious and willing child to schooland another case in which it conveys a child who in Shakespear’s word“creeps like snail unwillingly to school”; is it to be said that in theformer case the car is driven purely for the child’s purpose, whereasin the latter it is driven on the father’s behalf ? Is there a similardistinction between a case in which a child asks to be taken to thedentist, and one in which he is compelled to go and have his teethdrilled ?
In Hewitt v. Bonvin, du Parcq L. J. contemplated that an owner may beliable for his son’s negligence, if he permits the son to drive liomc theson’s friend who had been a guest at a party at the owner’s house ; thelearned Judge was of opinion that such a liability would arise if thepermission is granted in fulfilment of some social or moral obligationregarded as being owed by the father to his son’s friend. In the casethus contemplated, the fact that the guest’s purpose is served by hisbeing conveyed home would not in the opinion of du Parcq L. J. byitself negative the fact that the car is also used on the owner’s behalf.That opinion would apply with greater force when the owner permits hiscar to be used by his own minor child, for the existence of an obligationowed to the child, whether it be legal, social or moral, is the more probablein such a case.
It seems to me that we have encountered difficulty in considering thequestion whether the defendant’s ear was used on the defendant’s behalfmainly because the same question does not ordinarily arise in runningdown cases. In the vast majority of such cases, the owner is held liableon the simple ground that his car was driven either bj? himself or by hisservant in the course of his employment, and there is no occasion to consi-der whether the car was used by a bailee, or else on the owner’s behalf.But where a car is in fact used by its owner’s minor child, it would ordin-arily be contrary to common-sense to regard the case as one of bailment.It seems to me quite unreasonable to think that when my paid driverconveys my dependent child to school in my ear, the use of the car iseither lent or gifted to the child. If that use be regarded as a bailment ofthe car, then, when the child is sent to school in a taxi, my payment of thetaxi-fare must similarly be regarded as a loan or gift to the child. In thesimple common-sense view, there is not any loan or gift of the car or of thetaxi-fare, but instead the provision of ameans of transport, in performanceof a parent’s duty to maintain and educate his child. The fact that thechild may drive himself to school in the father’s car does not by itselfnegative the probability that the use of the car is jet being provided inperformance of that same duty.
H. N. G. FERNAXDO, C.J.—De Silva v. Hapuarclchi
127
The evidence in this case, that the defendant’s son did not perform hisfather’s “ errands ”, has not negatived the possibility that the car wasnevertheless used for some purpose of the son -which would yet fall withinthe purposes for which the defendant maintained the car. Such apossibility could have been negatived in this case if the defendant’s sonhad testified to some actual pi’ivate purpose for which he used the car,
. or if, as in the case decided in the Privy Council, the evidence sufficed tonegative the possibility adverse to the defendant.
The defendant attempted to repel the inference arising from his owner-ship in the second way contemplated in the Privy Council judgment, thatis to say, by simply asserting that the car had not been driven for anypurpose of his, and bj' attempting to prove that assertion. But he failedto adduce supporting evidence which should have been available to him ifthe assertion was correct. In my opinion that, failure, when consideredtogether with the known circumstances as to the use of cars in Colombo towhich I have already referred, is a proper ground upon which to distin-guish the present case from Hewitt v. Bonvin and from Bambarran v.Gwrucharran, and to hold that the inference arising from ownership hasnob been rebutted.
The conclusion of the learned District Judge that the defendant wasliable for the negligent driving of his car by his minor son has accordinglyto be affirmed.
At the time of this accident the plaintiff was a minor aged about 15years. According to the medical evidence he had been unconsciouson admission to the hospital, but recovered consciousness within afew hours. He'had sustained a compound fracture of the right tibia, asmall lacerated wound on his eye lid, and a wound about 6" long on theright buttock. As a result of the fracture the leg had to be in plaster forthree months. The medical evidence was that the bad effects ofthe fracture were not in any way permanent. All that remained inconsequence of this injury was a slight alteration in the shape of theleg. For about three daj's the plaintiff suffered from the effects ofconcussion, and the Doctor accepted as being probably correct theplaintiff’s own statement that even four years after the accident hosuffered from frequent headaches. The plaintiff has in addition a smallscar on his eye-lid.
The learned trial judge himself accepted the following statements madeby the plaintiff:—
That headaches had interfered with his study, and that inconsequence of this accident the plaintiff had abandoned theidea of studying engineering, and had instead chosen to become ateacher.
(i>) That the plaintiff suffers from pain if he runs even for ashort distance and that he is unable therefore to play cricket orrugger.'
l‘JS
S. N. G. FERNAIfDO, C.J.—Ue Silva v. Hapuaratchi
There •was only the plaintiff’s word that his student career had beenaffected as a result of the accident, although this was a matter whichcould have best been spoken to by the school authorities. Similarly theplaintiff’s complaint that he suffered from frequent headaches couldhave been supported by the evidence of the Doctor who according to theplaintiff had treated him for these headaches. It seems to mo that toomuch reliance was placed by the Judge on the plaintiff’s bare assertionsas to these matters.
In the case of Dms v. Silva 1 there was medical testimony that the plain-tiff had suffered fractures on the bones of the right foot ; that his leg hadto be in plaster for about six weeks ; that he suffered permanent injurywhich caused him inability “ to perform any duties that require standingor walking any distance that he would have a definite permanent limpin his walk, and it was very doubtful whether lie could play cricket orfootball ; that he could “ walk a quarter mile with a certain amount ofdiscomfort and pain ”, and “ he would be a disabled man ”. Theplaintiff in that case was awarded a sum of Rs. 3,500 as damages by theDistrict Judge. In appeal this amount was enhanced to Rs; 11,900 whichincluded a sum of Rs. 1,900 as expenses incurred in consequence of theinjury. Thus the plaintiff in that case received Rs. 10,000 as damagesfor pain of mind and body and for the permanent impairment of his foot-and its consequences.
In comparison, the plaintiff in the present ease was less seriouslyinjured, and ho cannot be said to have suffered the same pain of mindand body or similar disablement. Had there been impartial evidenceas to the effect of this accident on the plaintiff’s school career, and asto liis suffering from frequent headaches, the District Judge may havebeen justified in making the present award of Rs. 30,000. But on theavailable evidence, it is quite disproportionate to the award made inDias v. Silva by this Court. I would accordingly' reduce the award toa sum of Rs. 15,000.
The decree under appeal is affirmed subject to the alteration that theamount of damages is reduced to Rs. 15,000. The defendant must payone-half of the costs of this appeal.
Samerawickrame, J.—I agree.
Appeal parti^ allowed.
(19’>3) 55 N. L. Jl. 7.