086-NLR-NLR-V-43-PARAMESWARI-v.-KANAKARATNAM.pdf
Parameswari v. Kanakaratnam.
381
1942Present: Howard C. J. and Soertsz. J.
PARAMESWARI v. KANAKARATNAM.
165—D. C. Colombo, 1,747.
Negligence—Action for damages—Child injured by defendant’s driver—Real issue in case—Negligence of defendant.
In an action to recover damages for injuries caused to a school girl,five years old, by the driver of defendant’s car, the plaintiff’s case wasthat the girl was knocked down as she ran out of the school into theroad, four feet from the school gate, and that at the time the driver wasgoing much beyond his side of the road. .The defendant denied liabilityon the ground that his driver was not negligent and alleged contributorynegligence on the part of the plaintiff.
Held, that the real issue in the case was whether the defendant’sdriver was negligent in the circumstances and that the negligence of thechild was not a primary issue but arose only on the defendant’s driverbeing found to have been negligent.
Quaere : What is the position of a child of five years if the question ofcontributory negligence arises ?
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the head-note.
H. V. Perera, K.C. (with him P. Malalgoda), for the plaintiff,appellant.—The evidence led on behalf of the plaintiff has not been fullyconsidered. It is clear that the defendant’s driver was on the wrong sideof the roadi If ft is true that the driver overtook a cart it was his dutyto have done so at a safe spot and not near the entrance to the school.He should have contemplated the possibility of children. running out ofthe school gate into the road. The car was driven in such a mannerthat if a child emerged from the gate an accident would have beeninevitable. The case of Soper v. Watney1 is exactly in point. See alsoEstate Fallon v. Claret" and Culkin v. McFie & Sons, Ltd.3
N. Nadarajah, K.C. (with him H. W. Tambiah), for the defendant,respondent.—The finding of the District Judge is supported by theevidence on record. The evidence is that the car was driven at a moderatespeed. The present case can, therefore, be distinguished from Soper v.Watney (supra). The plaintiff must fail if her injury was due to her ownnegligence in failing to take reasonable care—Swadling v. Cooper.* Anydamages claimed by a plaintiff must follow from the defendant’s negli-gence—Clerk & Lindsell on Torts (8th ed.), p. 452.
The best evidence of any negligence would have been that of the Police,who had investigated into the circumstances of the accident,-but it wasnot led by the plaintiff.
H. V. Perera, K.C., in reply.—In the circumstances of this case, even aspeed of 15 miles per hour at the spot at which the accident took place isevidence of negligence. The same degree of care cannot reasonably berequired of a child as of an adult—McKerron on Delicts (1933) p. 36.
' ' ■ Cur. adv. vult.1 {1934) Cape P.D. 203.3 {1939) A.E.R., Vol. 3, p. 613
1 (1932) AJ). 177.* (1931) A.C. 1 at 8.
43/28
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SOERTSZ J.—Parameswari v. Kanakaratnam.
June 23, 1942. Soertsz J.—
This is a running down case and, like most such cases, is fraught with•difficulty, involving as they do questions of negligence and rashnesswhich have to be determined with reference to a certain hypotheticalstandard, namely the standard of that legendary individual whom weencounter, at every turn, in the field-—of Jurisprudence—“ The Reason-able Man It has been observed by high authority that his “ Appari-tions” mark the road to Equity and Right, for he is always thinking ofothers ; “prudence is his guide ; and ‘ safety First’ his rule of life”. Inthis case we have, in addition, the somewhat shadowy figure of “TheReasonable Infant ” lurking in the background, and due to loom large if“ The Reasonable Man ” fails to keep tryst with the defendant.
The substantial question, then, that arose first of all, was whether,on the occasion on which the plaintiff was run down by the defendant’sdriver, that driver adequately played the part of “ The Reasonable Man ”.
The learned trial Judge has answered that question in the affirmativeand, ordinarily, that answer should have put an end to this case, for theJudge was performing the functions of a jury as well. But, unfortu-nately, as Judge, he appears to have gravely misdirected himself. As Ihave already observed, the real issue was this:—“was the defendant’sdriver negligent”? but it is quite clear from the judgment that theJudge directed himself as if the issue was “ who was negligent, the plaintiffor the defendant ”? He adopted issue No. 3 suggested by the defendant’sCounsel, “Where the injuries caused to the plaintiff occasioned solelyby the negligence of the plaintiff in running out of the school to cross theroad without keeping a proper lookout ” ?
This issue was a false issue, calculated to divert attention from the realissue, and that it achieved this purpose is quite clear from the fact thatthe Judge concluded his judgment as follows : —
“ she (i.e., the plaintiff) was injured through her own negligence and notthrough any negligence of the defendant’s driver.”
In the circumstances of this case, it is a point for consideration whether-there could have been any question of plaintiff’s negligence. Negligenceresults from a breach of a statutory duty or from the breach of the generalduj.y to take care. This little girl of five years of age was under nostatutory duty not to run out of the school gate at the luncheon interval,and it is difficult to suppose that, when she so ran out, she fell below the.standard of care that can reasonably be expected from a child of that age.At any rate, that question would have arisen only in the event of thedefendant’s driver being found negligent and, although the judge rightly.says that, on his answer to issue (1), the question of the plaintiff’snegligence did not arise, he dealt with the case as if the negligence ofthe plaintiff was a primary and independent issue and not as a matterarising only in a certain contingency.
The whole judgment of the learned Judge has been coloured by thismethod of approach. He has failed to consider and deal with the case
SOERTSZ J.—Parameswari v. Kanakaratnam.
383
the plaintiff presented against the 'defendant,, that is to say, that thedefendant’s driver drove his car at a medium speed, going so muchbeyond his side of the road as to strike down the plaintiff when she wasonly about four feet away from the school gate. This is the definiteposition resulting from the evidence of the rickshaw puller, KapiapaThevar.
The learned Judge has not addressed himself to these matters at all,although they are matters of great importance, particularly the factthat the defendant’s driver was so far beyond his side of the road whenthe plaintiff was injured. Was there or was there not a cart on the road ?Was the driver so far on the right hand side of the road because he Wasovertaking a bullock cart ? Should he, in the circumstances, as known tohim, have overtaken the cart at that point ? If there was no cart can hejustify his going so far beyond his side of the road? If he cannot, is heentitled to turn round and say to the plaintiff—you ran into my car ?These questions do not appear to have even occurred to the trial Judge,and they are ultimately the important questions in the case.
The Judge acquitted the defendant’s driver of negligence because,to quote from the judgment, the driver says,—
“ (o) He was travelling at about 12 or 15 miles per hour which is notan excessive speed ”.
But it is not a question of speed in the abstract, but speed in all thecircumstances of the case, that arose for consideration.
“ (b) He saw a firewood cart halted on the road and he overtook it,and the plaintiff came out of the school gate and ran into theside-door
As I have already pointed out, the Judge does not say whether he findsthat there was a firewood cart on the road, and does not consider thequestion whether, if there was such a cart, the defendant’s driver actedreasonably, in the circumstances as known to him, in overtaking it as hedid.
“ (c) He sounded his horn ”.
The rickshaw puller’s evidence negatives that statement of the defendant’sdriver. The Judge does not return a finding in regard to it, and does notconsider the relevancy of the question, whether a horn was sounded or not.
** (d) He proceeded with due care and caution ”.
But that was precisely the question for the Judge and not for the defend^ant’s driver to decide.
Again, the. fact that the Police did not prosecute the defendant’sdriver appears to have put some weight into the scales on the defendant’sside for, although the Judge rightly observes that that fact is irrelevantand that “ even if the Police thought the driver was not negligent, thisCourt can form .its independent conclusions ”, he does not seem to haveborne in mind another aspect of the matter, namely, that the Police would.
384
SOERTSZ J.—Parameswari v. Kanakaratnam.
look for evidence of “ wicked negligence ”, of'“ such disregard for the lifeand safety of others as to deserve punishment ”, when they were con-sidering the question of prosecution or no prosecution, and not merelyfor evidence of such negligence as would support a claim of this kind.
For these reasons, I am of opinion that this case should be remitted fortrial by another Judge on the lines indicated in this judgment. Costsincluding the costs of "this appeal, will abide the result.
Howard C.J.—I agree.
Case remitted.