H, X. G. FJEBXAXDO, J. — Perera v. Perera'.
' 1957.Present : H. N. G. Fernando, J. .•
M.V. L. PERERA, Appellant, and M. D. G. PERERA
•(Inspector of Police), Respondent.
S. C. 1,240—M. M. C. Colombo, 21,642.*_
. Jilolor Traffic Act, -Vo 14 of 19-51—Failing lo take such action as may be necessary toavoid an accident—Ingredients of offence—Sections 151 (1), 153 (2).
A charge under soction 151 (1) oT the Motor Traffic Act for failing to takesuch act ion as may be necessary to avoid an accident should not bo thoughtlesslyexpended to each and every charge or negligent- or reckless driving. In aprosecution under that section the burden is on the. complainant to show whataction was reasonably appropriate in the circumstances and to prove that theaccused failed to take that action.
-T^LPPEAL, from a judgment of the Municipal Magistrate’s Court,•Colombo.^
D. D. AthulaihmudciH, with D. R. Wijegooneu-ardena, for the accused-•appellant-.'.
V. S. A. PiiUenayegum, Crown Counsel, for the Attorney-General.
..‘Cur. adv. wit.
July 1, 1957. H. N. G. 1’erxaxdo, J.—
, The appellant was convicted on two counts in respect of the' drivingof a motor vehicle. Firstly of reckless driving in contravention ofsection 153 (2) of the Motor Traffic Act, and secondly of c‘ failing to takesuch action as may be necessary to avoid an accident ” in contraventionof section 151 (1).
In regard to the 1st count-, the Magistrate has accepted the evidencethat the car driven by the accused knocked down a man who was walkingalong the right side of the road and came to rest against a drain alsoon the right side. In the absence of any excifse for the car having beendriven on its wrong side, I see no reason to interfere with the convictionon count (1).-
I have noticed, however, that in prosecutions under the Act chargesunder section 151 (1) are “ tacked on ” without due regard to what isin my opinion the real purpose of section 151 (1). The section providesthat “ Notwithstanding anything contained in section 150, it shall bethe duty of the driver of every motor vehicle on a highway to take suchaction as may bo necessary to avoid any accident In Wijesinghe v.Rajajoakse* Dias, J. had occasion to refer to the corresponding sectionSG (1) of the former Motor Car Ordinance which is in similar terms andto cite the following observation of Keuneman, J. in an unreported casewith reference to section SG (1). "I am inclined to think that thispresupposes that an accident is imminent or at any rate foreseen or
* (1917) 4S K. L. R. 3S3.
JT. G. FKRXAXDO, — I’crcra c. /*trcrti
anticipated. Under such circumstances, no doubt-, it will be tho duty oftho driver of the motor car to take all action necessary to avoid theaccident and if he fails to do so he may be made liable under thesesections. But, in the present case, there is nothing to indicate thatthere were any stejjs either necessary or possible which the accusedcould take at tlie time when the accident could fairly be anticipated ”.I would with respect agree with this observation. It is noteworthythat sub-section (1) of section 151 is prefaced by the words which I haveunderlined above. Section 150 contains what are described in themarginal note as rules of the road. The rules there laid down includeinter alia the left side rule, restrictions as to overtaking, rules againstobstruction, and the rule giving preference to right or off-side trafficat intersections. "When therefore section 151 (1) casts a duty on adriver to take necessary action to avoid accident notwithstandinganything contained in-section 1-50, there is in contemplation even actionin contravention of section 150. 1’or instance the action contemplatedmay in an ajjpropriate situation involve the driving of a car on the rightor off-side if that is reasonably necessary in order to avoid an accident.The fact that the action contemplated may even involve a breach of arule of the road indicates that the legislature had in mind “emergency'situations ” and casts on the driver- a special duty in such situationsto take appropriate action to avoid such accidents. The appropriateaction may' of course be merely' to halt y'our car or to make an unintendedturning or to take some other cpiite “ lawful or innocent ” step. 13utreasonable action in a particular situation may well include deliberateacceleration or even, as already' pointed out-, some breach of a standardrule of the road.
Having regard to the purpose of the section, it is clear, in my' opinion,
. that a charge thereunder should not be thoughtlessly appended to eachand every' charge of negligent or reckless driving, and in any event theburden would be on the jjrosecution to shoAv what action was reasonably'appropriate in the circumstances and to prove that the accused failedto -take that action.
In the case before me all that was established was that the accuseddrove his car in such a manner that he ran over a pedestrian walkingon the off-side, and the circumstances raised a clear inference that the -accident was caused by' recklessness. Once the accident was imminent,it was possible that it might have been avoided, say by jamming on thebrakes or by swerving away from the off-side or else by swerving stillfurther to the off-side. But before the accused could be properly con-victed of failing to take any such course of action, the prosecution hadfirst to prove what the appropriate course of action.would have beenand secondly that the accused failed to take that action._
The conviction and sentence on the 1st count is accordingly affirmedbut the conviction on the 2nd count is set aside. The fine of Rs. 50paid in respect of this conviction will be remitted.
Conviction on 1st count affirmed.
' Conviction on 2nd count set aside.. '
M. V. L. PERERA, Appellant, and M.D. G. PERERA (Inspector of Police ), Responde