121-NLR-NLR-V-61-K.-L.-JAYANHAMY-Appellant-and-THE-PANADURA-MOTOR-TRASIT-O-LTD-M-Respondent.pdf
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Jayanhamy v. The Panadura Motor Transit Co., Ltd.
Present: Sansoni, J., and Sinnetamby, J.K. L. JAYANHAMY, Appellant, and THE PANADURA. MOTORTRANSIT CO., LTD., RespondentS. G. 134—D. G. BaduTla, 13240
Delict—Cause of action—Requirement that it should he pleaded—Vicarious liability—Servant's negligence set up as cause of action—Right of plaintiff to rely ondefendant’s breach of duty to take reasonable care.
Where the only cause of action pleaded is that the defendant’s servanthad been negligent, and it is sought to make the defendant liable only on theground of vicarious responsibility for the acts and default of the servant,it is not open to the plaintiff to claim that the defendant is liable upon someother charge of negligence that has not been pleaded.
Accordingly, where the cause of action set out in the plaint is that thedefendant’s omnibus was driven rashly and/or negligently by the defendant’sdriver acting within the scope of his employment, it cannot be contended forthe first time in appeal that the defendant is liable for breach of duty to takareasonable care that the omnibus was in good order and in a safe condition tocarry passengers when it was used for that purpose.
SANSOISTI, J.—Jayanhamy v. The Panadera Motor Transit Co., Ltd.
489
i^-PPEAE from a judgment of the District Court, Badulla.
K. Shiny a, with A. A. de Silva, for the Plaintiff-Appellant.
Sam P. C. Fernando, for the Defendant-Respondent.
Cur. adv. vult.
May 4, 1959. Sajssoni, J.—
The plaintiff was travelling in an omnibus belonging to the defendantanfl driven by a driver employed by the defendant. Near the 127thmile post on the W ella way a-Haputale road the omnibus ran off the roadinto an embankment, toppled over, and came to rest on its side. Theplaintiff was seriously injured and he brought this action against thedefendant to recover a sum of Rs. 10,000 as damages.
The cause of action set out in the plaint is that the omnibus was drivenrashly and/or negligently by the defendant’s driver acting within thescope of his employment. The particulars of rashness and negligencegiven in the plaint were that the omnibus was driven (1) at an excessivespeed, (2) with a set of defective spring blades, (3) without a sufficientor proper look-out, (4) without due care or regard for the passengers,(5) without a satisfactory or efficient braking system and/or in anunroad worthy condition, and (6) without taking such action as wasnecessary to prevent the omnibus running off the road.
After trial the learned District Judge found that the accident occurredbecause the offside front spring main blade broke. The evidence of theExaminer of motor vehicles showed that when a blade breaks, the steeringmechanism goes out of order, and the vehicle cannot be controlled.The Sub-Inspector of Police who visited the scene of the accident foundthe spring blade broken in two and fallen about 28 feet away from wherethe omnibus toppled over.
The only question that remained for decision was whether there hadbeen negligence on the part of the driver in driving a vehicle which wasnot roadworthy because it had a defective spring blade. This positioncould not be substantiated as the Examiner of motor vehicles statedthat although he found an old crack in the spring blade, the existence-of that crack could not have been discovered unless the omnibus wasdismantled and examined. I agree with the learned Judge thatthe failure on the part of an omnibus driver to do this would not con-stitute negligence. As none of the other particulars of rashness ornegligence was established on the evidence led at the trial, the learnedJudge was perfectly correct when he dismissed the plaintiff’s action.
It was, however, submitted to us for the plaintiff, who appealed againstthe order of dismissal, that the defendant should have been held liablefor negligence because it owed a duty to the plaintiff, who was a passengerin the omnibus, to take all reasonable care that the omnibus was in good
490SANSONI, J.—Jayanhamy v. The Panadwra Motor Transit Go., Ltd.
order and in a safe condition to carry passengers 'when it was used forthat purpose, and it had failed to perform this duty. Reliance wasplaced on the decision in Cabral v. Alberatne1. In that case a motortruck belonging to the defendant ran off the road into the plaintiff’shouse and damaged it. The accident occurred because the steering rodhad become detached from the joint where it met the tie-rod ; thismechanical defect had developed suddenly in the course of the journeyand taken the driver unawares. The maxim res ipsa loquitur wasapplied by the Court and the plaintiff was awarded damages. LearnedCounsel for the appellant submitted to us that both in that case and inthis the action was framed on the basis that the vehicle in question wasdriven negligently, and we should follow that decision and hold thedefendant liable for the negligence of the driver.
So far as the present action is concerned, I think it would be wrongto do so for the reason that negligence on the part of the driver has beendisproved, and the only ground upon which the plaintiff sought to makethe defendant liable was that of vicarious liability for the negligentdriving of its servant. The actual ground on which the defendant inCabral v, Alberatne1 was held liable was that the defendant had beennegligent in permitting an unroadworthy vehicle to he driven on theroad. The point does not appear to have been taken there that thiswas a new cause of action which was not pleaded in the plaint, andthat decision is therefore of no assistance on this particular aspect ofthe argument.
We must certainly refuse to permit such a case to be put forwardat this stage, because no such case appears in the plaint. The objectionto this course is clearly explained by Lord Wright M. R. in Marshall v.London Passenger Transport Boarda. It is that there will be set up" a new cause of action involving quite new considerations, quite newsets of facts, and quite new causes of damage and injury, and the onlypoint of similarity would be that the plaintiff had suffered certain injuries.”
Another authority for the view I am taking is the decision of the Houseof Lords in Esso Petroleum Go., Ltd. v. Southport Corporation3. Wherethe only cause of action pleaded is that the defendant’s servant hadbeen negligent, and it is sought to make the defendant liable only on theground of vicarious responsibility for the acts and default of the servant,it is not open to the plaintiff to claim that the defendant is liable uponsome other charge of negligence that has not been pleaded. It thereforedoes not lie in the month of the plaintiff at this stage to urge that thedefendant has been guilty of negligence in allowing its omnibus to bedriven on the road in a defective condition.
I would therefore dismiss this appeal with costs.
Sxnnetamby, J.—I agree.
Appeal dismissed .
1 {1955) 57 N. L. B. 368.
2 {1936) 3 A. M. B. 83.
8 {1956) A. C. 218.