090-NLR-NLR-V-57-L.-E.-CABRAL-Appellant-and-R.-A.-ALBERATNE-Respondent.pdf
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1955Present .* Swan, j., and K. D. de Silva, J, ''
E. CABRAL, Appellant’ and R. A. ALBERATNE,.Respondent. ,
S. C. 211—D. C. Colombo, 26,212/M
Negligence—Accident—Application of maxim' res ip^p loquitur—Onus of proof—
Nature of burden on defence.'
In a case where the doctrine of res ipsa loquitur is applicable, the bui'den onthe dcfondant is not only to give a reasonable explanation of the accident inquestion but also to show that the specific cause of the accident does not connotenegligence on his part.'
A motor truck belonging to the defendant ran off the road into the plaintiff’s■ house, which was about six feet away from tho edgo of the road and stood at abend in tho road. Defendant pleaded inev itable accident. Ho sought to rebutthe presumption arising from the maxim res ipsa loquitur by merely stating thatthe immediate cause oftho accident was that tho steering-rod got out of its placo at. tho crucial moment. He did not, however, adduce any evidence as to how‘ and Why tho steering-rod came out of its placo. There was no evidence what-v/'soever that tho vehicle was regularly serviced or serviced at all. Even the MotorCar Examinor who examined the vehiclo soon after the accident had not beensummonod by the defendant to give evidence.
Held, that the fact that tho steering-rod went out of control was no answerunless the defendant proved—and the legal burden was on him to prove—thatit was no fault of his that tho steering-rod failed. . The defendant did not dis-charge, or even attempt to discharge, tho burden that lay on him and was there-fore liable to pay damages.
’ -1 Vije Bus Co., Ltd. v. Soysa (194S) 50 2C. L. R. 350, not followed.
A-PPEAL from a judgment of the District- Court, Colombo. ''
. 11. W. Jayeicardenc, Q.C., with P. llanasinghe, for the plaintiffappellant.
A. //. C. d( Stlta, for the defendant respondent.
Cur. ado. vu!(.
September 14, 1955. r>E Silva, J.— ‘.
. This is on appeal from a judgment of the District Judge, Colombo, dis-missing the plaintiff’s action in which he sought, to recover damages,resulting from a motor truck belonging to the defendant running off theroad into the plaintiff’s house and causing damage to it owing to thenegligence on the part of the driver of that vehicle. Admittedly, at the-time of the accident, this truck was being driven by the defendant’sdriver acting within the scope of his employment-. / The house in questionstands about six feet away from the left edge of the Kandy-Colon^jo roadwhen facing Colombo. This building consists of a room, a kitchen and a'front verandah and is a few feet below the road level. It stands at a bendin the road. At the time of this accident which was on the 27th June,
DKSILVA, J.-—Cabral r. Alberafne
, —
1951, tliis house was’in the occupation of the plaintiff's tenant JoachimIFeraando. .j Joachim iVrnahdo stated that on the day in question whenhe was standing on the road about 10 fathoms away from this house hes>.w this truck being driven past him at a fast speed. He then heard a•crash and saw the front portion of the truck inside his verandah. Thefront pillars had come down and his father and daughter who happened4o be in the Verandah at the time were found injured. James Singho whowas driving this truck at the time of this accident said that on the day inquestion he drove the vehicle a distance of 43 miles from Galapitamadaand that when he approached this house he found his steering-wheel" turned by itself” and that he then applied the brakes. On the appli-cation of the brakes the vehicle went down the slope in spite of his attemptto control it. He admitted that the front wheels of the truck enteredthe verandah of the house.’ He also stated that when he examined the■truck after the accident he found that the steering-rod had come out of •the joint where it meets the tie-rod. The defence, in short, is that this ■was an inevitable accident The learned trial Judge was of the viewthat there, .was no evidence to hold that at the time of the accident the.vehicle was being driven at a- fast speed He held that this was clearly•_a case where a sudden mechanical defect developed in the course of thejourney which took the driver unawares. He rightly held that thisis a case to which the maxim “ res ipsa loquitur applied. He wassatisfied, accepting the evidence of the driver, that the truck ran off theToad because the steering ceased to function.’ He held that the expla-nation given by the driver displaced the presumption which roso underthe maxim “ res ipsa loquitur ". As the plaintiff had failed to establishnegligence on the part of the driver, once the presumption was displaced,he dismissed the action with costs. He was of the view that the correctprinciple applicable to the facts of this case is set out in Yijaya Bus Co.Ltd.v. Soysa *. The plaintiff in that case was a passenger travelling in abus and he sustained injuries as a result of that vehicle going off the road.He sued the Company which owned the. bus to recover, damages. The•defence was that the bus ran off the road as a result of the steering lock,giving way and that it was an inevitable accident. – The learned DistrictJudge fohowihg.£a/e»wMiwi« v. Siddick -held that the defendant was liableto pay damages as the defence had not proved that the defect in the.steering could not have been reasonably foreseen and. remedied. Inappeal, the judgment of the. lower Court in that case was set aside.Windham J. held that the maxim “res ipsa loquitur ” applied in that-caso and consequently a prima facie case of negligence had been' madeout against the defendant. — But he proceeded to state that the burdencast upon the defence was not that' of proving the absence of negligencehut ‘merely' that of giving’a reasonable explanation of the- accident^—an' explanation' which' would negative the. presumption 'of’ negligencewhich the unexplained accident had raised ”. This judgment which was-delivered in the year 1948, is clearly in-conflict with Jhe principle enun-^ ■ciated –arlier by Dalton. J..-in Safenummh v. Siddickj-^Ihe facts jn the-■latter case were that a boy .standing on the doorstep'of his houre which was jabout 27 feet away from the middle of the road was knocked down and
injured by a passing bus. ‘The defence was that the accident was du&to the fact that the steering-gear had broken. Dalton J. in dealing withthat defence observed, ••- •■•• •: '
“ A statement of that kind of course in no way discharges the onus. of the.defendants or show there was no want of care on their part.Even assuming that the steering-gear was worn and defective but thatthe defendants had no knowledge of the defect, to place the bus on theroad in that condition was a thing neoessarily^dangerous to users of theroad and others and it amounts to negligence. ”.
It would appear that Dalton J. was of the view that the bare statementthat the accident arose as a result of a particular part of the mechanismgiving way at the crucial moment, does not displace the presumptionwhich arises from the maxim “ res ipsa loquitur ”. The learned trialJudge took the view that the decision in Vijaya Bus Co. jAd. v. Soysa 1was in accord with the judgment of the House of Lords in Bark way r.South Wales Transport Co. Ltd. 2. With respect, I am unable to share thatview. In that case an omnibus belonging to the defendant Companyran off the road and fell over an embankment as the result of tyre-burst.The plaintiff’s husband who happened to be travelling in that omnibusmet with his death in consequence of the accidentThe plaintiff claimed
damages from the defendant Company on the ground of negligence. Itwas established by the defendant that the tyre-burst was due to what iscalled an “ impact fracture ” due to heavy blows or impacts on the tyreas the result- of the tyre coming into violent contact with some, hardobject. It was also proved by the defendant that the tyres of their vehicleswere examined regularly, twice weekly, and that this particular tyre wasexamined two days before the accident bj' the person appointed to exa-mine the tyres and no defect was discovered. However it was foundthat the defendants had not instructed their drivers to report heavy blowsto tyres likely to cause “ impact fractures ”. Tlic-ir Lordships held thatit was the duty of the defendant Company to have instructed their driversto report such heavy blows ard the failure to do so rendered them liabl -to pay damages to the plaintiff, n account of negligence. In regardto the maxim “ res ipsa loquitur ’* Lord Porter in his judgment in thatcase cited with approval the following observation of Erie C..F. in Scottc. London Dock Cowjumy 3.
“ Where the thing is shown to be under the management of thedefendant or his servants, and the accident is such as in the ordinarycourse of things does not happen if those who have the management useproper care, it affords reasonable evidence, in the absence of expla-nation by the defendants, that the accident arose for want of care.
The doctrine of “ res ipsa loquitur ” comes into operation when the facts.regarding the accident arc not sufficiently known. Lord Porter stated inthat case that the explanation in order to rebut the presumption of
» (IDIS) 60 X. I.R. 36i.1 (I960) 1 A. E. R. 392.
1 JSG6 H. <L- C. 69G.
negligence arising under this doctrine- must be an adequate one. – Thejudgment, of the G-.-ujrt of Appeal in JBarJnray v. South Wales TransportCo. Ltd. 1 is reported in 1948 A. E. R. 460 irhere Asquith I>. J. set out in.very clear language the law regarding the onus of proof when the principleof “ res ipsa loquitur ” arises. He' stated “ The position as to the onusof proof in this case seems to be fairly summarised in the following shortpropositions—
If the defendant^’ omnibus leaves the road- and falls down anembankment, and this -without more is proved, then “ res ipsaloquitur there is a presumption t-hatthe event is caused by the negli-gence on the part of the defendants and the plaintiff succeeds unless thedefendants can rebut this presumption.
It is no rebuttal for the defendants to show, again without more,that the immediate cause of the omnibus leaving the road is a tyre- .burst, since a tyre-burst per se is a neutral event consistent and equallyconsistent with negligence or due diligence on the part of the defend-ants. When a balance has been tilted one way, you cannot redressit by adding an equal weight to each scale. The depressed scale willremain down .
To displace the presumption the defendants must go further andprove (or it must emerge from the evidence as a whole) either (a) thatthe burst itself was due to a spcciGc cause which does not connotenegligence on their part but points to its absence as more probable,or (6) if they can point to no such speciGe cause, that they used allreasonable care in and about the management of their tyres. ”
These propositions were not dissented from by the House of l.-ords.
In the present action the defendant seeks to rebut the presumptionresulting from res ipsa loquitur ” by merely stating that the steering-rod got detached from its joint. Undoubtedly, that is the immediate,cause of the accident but how and why did the steering-rod come out ofits place ? Motor vehicles which are regularly serviced and properlylooked after are not generally subject to such defects.' In order that theCourt may ascertain whether it was due to any lapse on the part of thedefendant that the steering mechanism gave way it is incumbent on thedefendant to establish that all necessary precautions for the avoidanceof a defect of this nature had been taken by him. There is no evidencewhatsoever that this vehicle was regularly serviced -or serviced at all.'.All that the driver says is that during this unfortunate journey, of 43miles from Galapitamada he did not Gnd any defect in^the engineor steering or in the tie-rod until the vehicle crashed .into the plaintiff’sverandah.- Even the Motor Car Examiner who examined the vehicle,,soon after the accident-, had not been summoned by the defendant to giveevidence. In these circumstances it is idle to suggest that prima' facieease of negligence which arose'in accordance with the doctrine of -“- res-ipsa loquitur ” has been displaced by the bare statement of the driver
.Z-l It-3 > 119-50) 1 A. E. R.~
*hat the steering-rod gave wav. In this connection the observations of-Denning L.J/in Southport Co-operation v. Esso Petroleum Co':, Ltd.1 which’read as follows are in point: –
” Applying the Merchant Prince a wo find here that the ship ran onto the revetment wall. If the steering-gear was in order, that was.plain negligence. The ship seeks to escape from this charge of negli-gence by saying that her steering-gear had failed and she was out ofcontrol. But. that is no answer unless she proves—and the legal-burden is on her to prove—-that it was no fault of hers that the steering-gear failed. .She has not dischaiged that burden, or even attempted to. discharge it. She is therefore liable. ”
Adopting the language of Lord Denning I would say that the defendantin this case too has not discharged the burden that lay on him or evenattempted to discharge it. The defendant is therefore liable to paydamages. I would also observe that the eas' reported in 51 N. L: R. 350whs decided before the eases reported in {1950) 1 A. E. R. 392 and{1954) 2 A. E.R. 561.
The learned trial Judge has assessed the damages atRs. 500 in the eventof the plaintiff being entitled to recover them. There is now no disputeabout the quantum of damages. Accordingly I allow the appeal andenter judgment for plaintiff in the sum of Rs. 500 with costs in both Courts.
Swax, J.—I agree.
Appeal allowed.