PERERA, Appellant, and CHARLES et al., Respondents

012-NLR-NLR-V-49-PERERA-Appellant-and-CHARLES-et-al.-Respondents.pdf


CANEKERATNE J. Perera v. Charles.
3»
1947Present: Soertsz S.P.J. and Canekeratne J.
PERERA, Appellant, and CHARLES et al., Respondents.
8. C. 211—D. G. KegaUa, 2, 958.
Negligence—Passenger in bus—Arm protruding from bus—Defendant negligent—
Contributory negligence of plaintiff—Test applicable.
Plaintiff, a passenger in ominibus referred to as X. bus, was seated with bisarm resting on a brass rod that ran along the side of the bus and part of b isarm protruded from the bus. As it approached a culvert this bus met theW. bus driven by the driver of the first defendant. The W. bus collided withthe X. bus and the plaintiff’s arm was injured. There was negligence on thepart of the drivers of both buses. The trail Judge dismissed tbe action onthe ground that the plaintiff bad, by sitting with his arm protruding from thebus, being guilty of contributory negligence.
Held, that the negligence of the plaintiff, if any, was not a fault contributoryto the collision. The sole cause of tbe accident was the negligence of thedriver of the W. bus or his negligence aided by that of the X. E-os.
^PPEAL from a judgment of the District Judge, Kegalla.
F A. Hayley, K.C. (with him C. E. S. Perera, E.B. Wikramanayakeand S. R. WijayatilaJce), for the plaintiff, appellant.
R. Ouneratne, for the 1st defendant, respondent.
H. V. Perera, K.C. (with him U. A. Jayasundere), for the 2nddefendant, respondent.
Cur. adv. milt.
November 7, 1947. Canekeratne J.—
This is an appeal by the plaintiff from a judgment dismissing hisaction for the recovery of damages for personal injuries against the twodefendants. The plaintiff who was a passenger in omnibus bearing No.X 7897—I shall refer to it as the X. bus—instituted the action onNovember 4, 1943, against one K. G. Charles, the first defendant, and thePanadure Bus Company of Panadure, which was named the second defend-ant. It was alleged that the first defendant was the owner of a busbearing No. W. 1372, driven by one Peter, and the second defendant theowner of bus bearing No. X. 7S97 and driven by one Ekanayake, andthat “ the two buses were driven recklessly and negligently by the afore-said drivers in the course of their employment by the two defendants andas a result of such reckless and negligent driving the buses met with acollision ”. On January 11, 1944, the proctor for-the plaintiff changedthe name of the second defendant to the Panadure Motor Transit Co. OnFebruary 9,1944, a proxy was filed on behalf of the second defendant, andbegins thus : The Panadure Bus Company by … The seal ofthe Panadure Motor Transit Co., Ltd., is affixed at the bottom.
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CANEKERATNE J.—Perera v. Charles.
The date for filing answer was fixed for March 1. On that daythe first defendant filed answer, the second defendant tooktime. On March 29 a new proxy wets filed in favour of another proctorby the second defendant—it begins thus : The Panadure Motor TransitCompany, Limited, Panadure—a rubber stamp is affixed at the bottomand underneath is the signature of the Secretary and a Director, andanswer was filed also on this date. In the answer the second defendant,as the Judge states, admitted that it was the owner of omnibus X. 7897,and that its driver E. A. John Ekanayake did drive the bus along theUndugoda-Bulathkohupitiya Road on April 5, 1943, and that theplaintiff was a passenger in the said bus. Omnibus bearing No. W. 1372had at this time been 13 years in use—I shall refer to it as the W. bus.
In April the trial was fixed for August 25, 1944 ; as the proctor forthe second defendant was ill the trial was postponed for December 8.On December 8, the proctor for second defendant moved to filean amended answer ;■ as objection was taken to this, order was made to“ call it on December 13 Case was called on 13 : Order was “ partieswill now get ready for trial. Call case December 18, 1944, to fix dateof trial. Question as regards the amount of costs will be consideredon that date ”. The journal entry of that day begins thus : “ Mr.
. instructed by … for second defendant ”. The proctoris the same person who appeared for the second defendant then on the
record. There is an observation by this Counsel—“ Mr
wishes it recorded that order for costs can be made against who appearedto be second defendant on the record ”. Some confusion seems to havebeen caused on this date. The proctor for the plaintiff appears to re-echo some observation made by another in Court “ as he is not a legalperson, Mr. Fernando moves to amend the caption by deleting PanadureMotor Transit Co. and adding W. Leo Fernando, carrying on businessunder the name and style of Panadure Motor Transit Co. Trial postponedfor April 27, 1945 ”. On March 16, 1945, a proxy was filed signed byW. Leo Fernando. There is a document in the record purporting tobe the amended answer of the second defendant “ The Panadure MotorTransit Co. of Panadure ” dated December 6, 1944—there is no orderaccepting this answer nor is there any answer filed by W. Leo Fernando.
The plaintiff who appeared to have what seemed a good cause of actionagainst the Panadure Motor Transit Co., Ltd., which had admitted that
A. John Ekanayake was the driver employed by it—so far practicallyabandoned the proceedings against this Company and induced by some-one or other made the present second respondent the second defendantto the action.
On February 23, 1945, the plaintiff’s proctor obtained an order for inter-rogatories to be answered by the first and second defendants. The seconddefendant, in answer to interrogatory 3, said that he was the proprie-tor of the Panadure Motor Transit Company, but the Company had becomedefunct. He did not condescend to answer interrogatory 5 but referredthe plaintiff to para. 6 (d) of the amended answer. The answer tointerrogatory 1 is an improper answer in so far as it attempts to givegratuitous advice to the plaintiff. At the trial which took place on
CANEKERATNE J.—Perera v. Charles.
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April 24, 1945, Counsel appeared for this defendant; he did not call anywitness ; the Counsel for the first defendant appears to have obliged thesecond defendant by calling the driver of the X. bus as a witness, and thiswitness was allowed to produce two documents which should have beenproduced by someone called by the second defendant. This driver saidthat he was not employed by the second defendant, but he could give nosatisfactory explanation as to how the proctor for the second defendantgave the address of the driver of the X. bus, of the conductor of the samebus and of the ticket examiner as care of Panadure Motor Transit Co., Ltd.,Panadure. The evidence of Peter, the driver, is that Ekanayake was, atthe time of the accident, employed by the Panadure Bus Company.
The judgment of the trial Judge is not of much assistance. Very earlyin his judgment he began by stating that the facts of this case are similarto those in the case of Fernando v. Gunawardene1—there is a superficialresemblance as there too an arm of a person was jutting out; that was acase not of contributory negligence but of there being no evidence of neg-ligence. This is a serious misdirection : next one has to read the judgmentmore than once to glean what views the Judge holds on the evidence.After summarising what some of the witnesses called by the plaintiff statedhe leaves their evidence with the brief remark, the witness did not makea statement to the Police. Instead of this he should have tried to cometo a decision as regards the credibility of these witnesses. Eka-nayake has not spoken the truth on a number of points, Peter has notgiven the true version on some matters, the statement made by Peter tothe Police is almost a replica of what Ekanayake said. Not much re-liance can be placed on the evidence of the two constables, Abeyratne andEdmund, the former was at a great disadvantage from the moment heconfessed that the note book in which he took down the statement of theplaintiff—the plaintiff denied he made a statement—is missing and thathe cannot explain how it was lost, the latter’s evidence is contradictoryof the former’s. Abeyratne’s version is that he did not see the plaintiff tillsome time after the driver’s statement had been recorded. It is likely thathe was induced to take the view that, as there was not much harmdone, a detailed inquiry was not necessary—his conduct can be explainedonly on this supposition. Apparently there was overcrowding in theX. bus, whether it was uncomfortable overcrowding or not cannotbe determined with certainty.
One question for decision is : Was Ekanayake in the employmentof the second defendant at the time of the accident ? The plaintiffdid not give any evidence bearing on this question. There is, however,the statement of the driver Peter, but it is not sufficiently definite ;the strongest circumstance against the second defendant is furnishedby his conduct in these proceedings, but still it is hardly possible on thatalone to come to a conclusion adverse to the second defendant. Thedocument 2 D 1 is not of importance on the real question at issue : itmay have been prima facie evidence in an action instituted againstanother party.
The collision between these two buses occurred at about 9 a.m. nearthe 8th milepost in Moradane village. The W. bus was proceeding
1 (1944) 45 N. L. R. 521.
9 – N.L.R. Vol – xlix
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CANEKERATNE J.—Perera v. Charles.
from Kegalla to Bulathkohupitiya, the driver says he saw the otherbus about 8 fathoms away when, his bus had got on to the culvert orthe bulk of his bus was on the culvert, the culvert was 47 feet in lengthand near it on the Bulathkohupitiya side of it is a bend in the road. Theroad within the culvert is narrow and there was no room for that bus topass the W. bus, according to driver Peter—the evidence of Abeyratneis substantially to the same effect ; Peter said he halted his bus, but thetrial Judge does not seem to accept this view (p. 81) : he seems also tohold that Dharmawardene was, contrary to the driver’s testimony, a pas-senger in the bus ; it seems clear that there was blood on the outside ofthis bus and also on the top of the body of the other bus ; blood was seenimmediately after the impact; there was a dent on the top of the body ofthe X. bus and a mark on the W. bus. It is also a fact that Ekanayakeaccelerated the engine at the time and changed gear, for to go forwardthe engine has, according to him, to be accelerated : the driver of theW. bus says he was travelling at 20 to 25 miles an hour.
At that time the X. bus was some distance from the entrance to theculvert and was doing, according to the driver, about 10 to 15 milesan hour, according to the driver Peter about 15 to 20 miles. When ithad proceeded some distance Ekanayake saw the other bus on theculvert, though he started by saying that he did not apply his brakeshe later admitted that he came applying his brakes—this is confirmedby what the witnesses who were passengers in his bus state.
The other bus had its right wheel on the middle of the road thus notleaving much room for one to pass if both were moving, as clearly theywere. While the X. bus was approaching the W. bus to pass it as des-cribed above and when the front of the former was nearly level with thefront part of the W. bus, the latter apparently made a move and swervedand one knocked against the other. The course steered by the X. busand the W. bus was faulty in that the former was aiming to pass the W.bus, the latter to pass the X. bus too close. There was not a sufficientspace between itself and the other bus so as to eliminate the risk if theW. bus or the X. bus happened to move somewhat nearer, and also togive that bus more time to avoid a collision if a danger of this sortpresented itself.
Plaintiff had his hand on the rest or plank of the bus body, near, or onthe brass knob : there were brass rods from one post to the other. Hisevidence was that no part of his arm was protruding outside the bus. Ifthis hand was resting in this manner at the time the bus entered theculvert—and there was no uncomfortable overcrowding—he had beennegligent at an earlier stage in leaving his arm protruding : the W. busstruck against the other bus and as a result the brass rod was movedoff its post and rod and knob were turned towards the inside of the bus,it then struck against the arm of the plaintiff. Both these buses hadmudguards : the probabilities are that the mudguard of one of thesebuses would be at least 2 inches in width, there would be a space of4 inches between the 2 buses comparatively free from any danger. Ifthe hand was projecting out of the bus 4 inches or 5 inches no harmcould have been caused to the plaintiff as the W. bus was passing if
CANEKERATNE J.—Perera v. Charles.
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it was driven carefully. By not keeping a proper lookout Ekanayakefailed to stop his bus before the entrance to the culvert, he thus disabledhimself from avoiding a collision. The driver of the W. bus was drivingat an excessive speed considering the circumstances—he was proceedingon a culvert of this nature at a time when another bus was approachingfrom the other direction. The negligence of the driver of the W. buscontinued right up to the moment when the collision became inevitable.As by driving more carefully or by stopping his bus before he came infront of the other he could have avoided hitting the other bus, hisnegligence was the cause or/and the negligence of the other driver wasthe cause of the damage.
The burden of proving contributory negligence on the part of theplaintiff lies on the defendant. The defendant must prove that therewas a failure by the plaintiff to protect himself from harm when heought to have done so, that he culpably exposed himself to the riskof harm consciously or inadvertently. Legal responsibility in casesof contributory negligence may be determined by finding out whichparty is the real or the effective cause of the harm—or the “ decisive ”cause of it ; sometimes one is said to be the “ proximate cause ” of thedamage—it may also be referred to as the “ dominant or determiningcause ” of the disaster. “ The interpretation to be applied does notinvolve any metaphysical or scientific view of causation. Most resultsare brought about by a combination of causes, and a search for * thecause ’ involves a selection of the governing explanation in each case ”1.It has to be selected by the common sense standard applied by the manin the street. The question of contributory negligence should beapproached broadly avoiding those fine distinctions which are apt to bedrawn when some slight act of negligence on the part of the one personmight be said to defeat his claim 2.“ The cause of the death of a human
being may, I suppose, be scientifically stated to be the failure of thesupply of sufficient oxygen to the brain, but when a medical man certi-fies ‘ the cause of death ’ he looks for the thing which has predominantlyoperated to bring death about. In such a case—it is this sort of practicaltest which has to be applied. ”
Passengers are often seen holding the brass rod fixed between the posts,this would happen more frequently near bends and culverts. Theplaintiff was negligent, according to the first defendant, because hehad his arm protruding from the rest on the bus, this negligence of hiswas in existence at the time the X. bus entered the culvert. The driverof the first defendant knew of the risk which has been created or wasin a position in which he ought to know of the risk. In a collision casethe Acts of the parties may be successive in point of time : here usuallyone party has by negligent conduct created a state of affairs which pre-sents risk of danger in certain conditions, and the other disturbs theexisting state of affairs by adding the fact or necessary for the productionof it, he thereby converts a potentially harmful state of affairs into onecausing harm. Davis v. Mann3; Radley v. London and North Western
1 Yorkshire Dale Steamship Co. v. Minister, 1942, A. C. 691 at p. 698.
3 Volute (1922) 1 A. C. 129, p. 144.3 (1842) 10 M. dk W. 546.
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CANEKERATNE J.—Perera v. Charles.
Railway Co.1. The later actor could have avoided causing damageby the exercise of reasonable care and he is responsible for the otherparty’s damage ; but if he is the person suing for damages he cannotgenerally recover (Butterfield v. Forrester2'). Whether the plaintiffgot in the way of the W. bus with or without negligence on his part,the first respondent’s driver could and ought to have avoided the con-sequences of that negligence, ho failed to do so not by any combinationof negligence on the part of the plaintiff and his own, but solely by hisnegligence in driving the bus carelessly and in not stopping the bus whenhe saw the other bus approaching. The negligence of the plaintiff,if any, was not a fault contributing to the collision. – The solo causeof the accident was the negligence of the driver of the W. bus or hisnegligence aided by that of the X. bus. An ordinary passenger by anominbus is not affected by the negligence of the driver unless he actuallyassumes control over his actions. The “ Bernina ” 3. It may be thatthe respondent may be able to contend that there was a combinationof negligence on the part of the driver Ekanayake and his driver butthat is immaterial in the present case.
It may often bo helpful to take into consideration the culpability ofthe conduct of the parties. A choice would have, to bo made betweentwo faults which arc very closely connected. It may often appear thatone cause was more important or played a greater part in bringing aboutthe result and that one person was therefore more to blame. Oftenit may seem as if a Judge has placed the blame and consequent lia-bility upon the party whoso conduct deserved the greater censure. AsVoct states “ he is liable whose fault is regarded the greater ” (9. 2. 17 ;cf. 0. 2. 22 too).
The plaintiff has suffered, as the Judge states, both mentally andbodily. The plaintiff was, according to the evidence led in the case,earning at least Rs. 120 a month: Iris earning capacity has been dec-reased at least 50 per cent, according to the medical evidence : he isnot able to use his right hand for writing and he cannot carry anythingby that hand. He was 55 years old at the time of the accident. Heshould be given a sum sufficient to compensate him for the loss that hehas suffered for two years and would suffer for a number of years by reasonof the incapacity to earn the former income. He is also entitled to somecompensation for the pain and discomfort suffered b3' him by reasonof the injury : the wrong doer must also compensate him the expenseshe would have incurred in getting treatment. The plaintiff shouldget a sum of Rs. 5,000 as damages. The second defendant will not beentitled to any costs considering the attitude adopted by him in thiscase. The first defendant will pay the appellant the sum of Rs. 5,000together with interest from this date, the costs of trial and of appeal.
SOERTSZ S. P. J.—I agree.
Damages awarded against first defendant-Action against second defendant dismissed without costs.
* (1809) 11 East 60.
1 (1876) 1 A. C. 754.
(1888) 13 A. C. I.