AYOOB AND ANOTHER
COURT OF APPEAL.
MOONEMALLE. J. AND GOONEWARDENA, J
A. APPEAL No. 87/77(F).
C. COLOMBO No. 78011/M.
FEBRUARY 2. 1986.
Negligence-Contributory negligence-Breach of rules of the road.
Breach of the rules of the road can constitute negligence. The question of negligencemust be considered on the basis of all the evidence. It must not be made to hinge uponone answer such as that there was no fault on either side given in the context of thequestioning on the fact that there was no police prosecution.
Cases referred to:
Martindale v. Wolfaardt- 1940 AD 235.
Dunn v. Macpherson-N.P.D. 1931 (P.H.O. 14).
APPEAL from judgment of District Court of Colombo.
Dr. H. W. Jayewardene. Q.C with Ronald Perera and Miss T. Keenawinna forplaintiff-appellant.
Mark Fernando. P.C. with P. Abdul Rahman for defendants-respondents.
Cur. adv. vult.
March 26. 1986.
The plaintiff-appellant filed this action in the District Court to recoverfrom the defendant-respondents a sum of Rs. 42,000 claimed bywayof damages.
The claim arose consequent upon an accident that occurred on24.3.1971 between a motor cycle ridden by the plaintiff-appellantand a motor car bearing No. CL 8023 belonging to the 1stdefendant-respondent and driven on this occasion by the 2nddefendant-respondent.
The case of the plaintiff briefly had been that when he was riding thismotor cycle along Galle Road from the direction of Fort towardsBambalapitiya this car driven by the 2nd defendant emerged fromEdward Lane into Galle road and in attempting to cross the line oftraffic to proceed towards Fort collided with his motor cycle as a resultof which he sustained the injuries which constitute the foundation ofhis clairri. The plaintiff had contended that the proximate cause of thisaccident was the negligence of the 2nd defendant which gave rise tothe liability of the latter to make good the damages claimed. Thedefendants however had taken up the position that it was thecontributory negligence, if not negligence of the plaintiff that broughtabout the accident.
After trial the learned District Judge dismissed the plaintiff's actionin the view that he h* J taken that it was the negligence of the plaintiffthat resulted in the accident. While not accepting the 2nd defendant'sevidence that at the time of the accident the plaintiff was talking to hispillion rider the District Judge has concluded that there was •negligence on the part of the plaintiff giving as far as I could see as hisreason for such conclusion that taking into account the plaintiff'sevidence that there were three lines of traffic on theColpetty-Bambalapitiya Road, if the 2nd defendant's car went acrossthis road from the side road, it was possible that this car would havecollided with other vehicles travelling on this road, as well. In theevent, the 2nd defendant's car did so go across this road and in myview the finding of the learned District Judge on this material leavesmuch to be desired and it behoves me then to deal with this matter insome depth in order to arrive at a proper finding.
That Galle Road is a main road with respect to Edward Lane therecan be no doubt. What then would be the duty of a motorist whoendeavours to cross Galle Road from Edward Lane with a view toproceeding towards Fort? What specifically would be the duty of suchmotorist with respect to traffic moving along Galle road in the directionof Bambalapitiya? In my view it would be the duty of such a motorist togive way to traffic along Galle Road proceeding toward Bambalapitiya,as to hold otherwise would be virtually tantamount to saving that suchmotorist cutting across Galle Road from Edward Lane would be at
liberty to do so even if it results in the obstruction of such traffic. TheRules of the road contained in the Motor Traffic Act intended toregulate traffic in an orderly manner and so ensure the safety of allusers of the road I think imposes this duty on such a motorist and abreach of such duty to my mind constitutes negligence which if itbrings about damage or injury becomes actionable in law. To put itprecisely and with respect to the case before us I think it was the dutyof the 2nd defendant to have halted his car at the top of Edward Lanebefore entering Galle Road (without having proceeded up to the centreline as he says he did) and then to have crossed the landside half ofGalle Road to enter the seaside half only when it was possible to do sowithout obstructing the traffic going toward Bambalapitiya, that iswhen the landside half of Galle road was reasonably clear of traffic atthis point to permit the 2nd defendant to cross this half withoutimperilling the safety of such traffic. Anyone negotiating a vehiclealong Galle Road (as the plaintiff did) keeping a lookout for other trafficalso proceeding in the same direction (as the plaintiff would have hadto do) could reasonably be expected to contemplate that he could doso without being exposed to the hazard of suddenly encounteringwithout adequate warning a vehicle across his path; vide Martindale v.Wolfaardt (1 )-Negligence in Delict by Macintosh & Scoble, 4th Ed.pp. 288 & 289-and in such a situation if evasive action of some kindis taken by him (such as what the plaintiff says he attempted to dohere) in my view one cannot find much fault with that or term itcontributory negligence even if such action might not have been of theoptimum kind that might have been taken had there been the time andopportunity to do so.
The plaintiff's evidence was that he, a police officer, was riding hismotor cycle on official business at about 1 2 noon towardsBambalapitiya traffic lights, that Galle Road was divided into two, thatthere were three lines of traffic, that he was riding on the middle of theroad, that as he got close to the traffic lights they indicated the colourgreen whereupon traffic started to proceed towards Bambalapitiya,that a motor vehicle suddenly was put across the road from a sideroad on the landside resulting in this collision, that there was noopportunity to avoid the collision as the motor vehicle was very close,but that while he braked he steered his motor cycle to the right side.
The version of the 2nd defendant was that when he came up toGalle Road along Edward Lane and gave a signal, in the three rows oftraffic were two cars and a bus which halted and signalled to him toproceed whereupon he drove up to the centre line and stopped to lookout for traffic when the motor cycle came along with the rider talkingto the pillion rider behind and collided with the front left head lamp ofhis vehicle. As I said earlier the District Judge has not accepted the2nd defendant's evidence that the plaintiff was talking to his pillionrider and I am inclined to agree with that view. Learned Queen'sCounsel for appellant has contended that on the evidence a primefacie case of negligence has been established and I agree with thatcontention. As I stated earlier the 2nd defendant owed a duty of carenot only with respect to the vehicles he claimed were stopped on hissignal namely the two cars and a bus but also with respect to themotor cycle which was being ridden along the main road. To repeat inthe context of the evidence what I said earlier it was incumbent uponthe 2nd defendant-respondent not to have proceeded up to the spothe did proceed up to, but to have allowed the motor cycle to passbefore doing so, unless the motor cycle was at such a distance fromhim that it was possible for him to have got across the road before themotor cycle got up to his vehicle, which latter position however is notthe case of the 2nd defendant. (Vide Dunn v. Macpherson(2))-Negligence in Delict (ibid) page 289). I take the view that theprobabilities are that the 2nd defendant drove his car up to the centreline completely blocking the path of the motor cycle which was closeto it thus rendering it necessary for the plaintiff to move to the right inan attempt to avoid the car. Learned President's Counsel for therespondents contended that the fact that the damage was to the leftfront side of the car points to the negligence of the plaintiff but in myview such damage is compatible with the plaintiff having tried to avoidthe impact without success and being hit by the area of the left fronthead lamp of the car. The representations shown on the sketchproduced at the trial I think support that view. Learned President'sCounsel for the respondents also contended that the plaintiff hadadmitted in evidence that there was no fault on both sides and that thebenefit of that evidence must be given to his client. I cannot agree thatthis answer of the plaintiff given in response to a question put as to theabsence of a police prosecution against the 2nd defendant can be saidto be conclusive of the question of negligence just as much as tfieabsence of such prosecution cannot be regarded as conclusive ofsuch question either. Such negligence or absence of negligence on thepart of either party in my view has to be determined upon anexamination of all the circumstances surrounding the accident andcannot be made to hinge upon a single answer such as this. Suffice itto add that for the purpose of determining where the blame layaccount must also be taken of the diminished credibility of the 2nddefendant consequent inter alia to the different positions taken by himwith respect to the passengers in his car and the number ofstatements made to the police.
In the result I am of the view that the plaintiff has successfullydischarged the burden that lay upon him to establish the requisitenegligence on the part of the 2nd defendant and that the position somade out by the plaintiff has not been displaced by the 2nd defendant.The only question that then remains is as to the quantum of damages.
Learned President's Counsel for the defendants-respondents didnot address us on this question and what was urged in this connectionby learned Queen's Counsel remains unchallenged. Taking intoaccount all the circumstances including the medical evidence and thebodily injury suffered by the plaintiff-appellant as well as the residualphysical impairment he must carry through life I am of the view that theamount of Rs. 42,000 claimed is a fair and reasonable estimate of thedamages the plaintiff-appellant should receive.
I set aside the judgment of the learned District Judge and givejudgment for the plaintiff-appellant as prayed for in his plaint. He willalso be entitled to his costs in this court and in the court below.
MOONEMALLE, J.-l agree.
HEMACHANDRA v. AYOOB AND ANOTHER