SINNIAH NADARAJAH, Plaintiff- Appellant and THE CEYLON TRANSPORT BOARD and A

006-NLR-NLR-V-79-2-SINNIAH-NADARAJAH-Plaintiff-Appellant-and-THE-CEYLON-TRANSPORT-BOARD-and-A.pdf


48WlytALAK ATNK, .1.—Nao'ornjah v. (Jrylcn Transport Board
1978 Present: Wimalaratne, J., Rajaratnam, J. and
. .Walpila, J.
SINNIAH NADARAJAH, Plain tiff-Appellantunci
THE CEYLON TRANSPORT BOARD and ANOTHERDefendants-Respondents
S.C. 3.79/75 (F)— D.C. Colombo E/614/M
Delict—Claim against two defendants for damages for personal injury—Whether driver of vehicle negligent—Plea of guilt tendered byhim when charged in Magistrate’s Court—Admission—Whetherrelevant on such issue in civil suit.
Damages—Severe injuries and disablement caused by being knockeddoiun by bus—Heads of damage—Assessment.
Where the driver of a vehicle (2nd defendant) is sued alongwith his employer (1st defendant) for the recovery of damagesresulting from an accident in which the plaintiff suffered injuriesby being knocked down, a plea of guilt tendered by the driver,when charged in the Magistrate’s Court in respect of the sameaccident, is relevant as an admission made by him and ought tobe taken into consideration by the. trial Judge in the civil suit.
In a claim for damages for physical injury whether caused bynegligence or otherwise, the damages are, apart from specialdamages, at large, and will be giver; for the physical injury itself,and in case of disablement for its effect upon the physical capacityof the injured person to en.joy life as well as for his bodily painand suffering.
Per Wimalaratne, J. :
“This accident took place on the approach road running in frontof the Fort Railway Station, within the railway premises. This isa road where many people gather around, and a .place wherepassengers go to and fro. There was, therefore, a high degreeof care cast upon drivers of vehicles and a duty to drive extremelycarefully in order to avoid possible accidents. The accident tookplace about 24 feet in front of the bus halt, which was situatedon the pavement. One would expect the bus to have been drivenalongside the pavement and halted at the bus halt, but the busknocked down the plaintiff 24 feet in front of the bus halt, andthereafter proceeded a further 46 feet from the bus halt before itstopped. These facts show that the bus was driven at a speedexcessive in the circumstances, and that the driver also failed tokeep to the left or near side of the highway. The learned Judgehas failed to consider these facts in relation to the issue of negli-gence particularised in the plaint.”
a
Case referred to :
Hollington v. Hewthom & Co. Ltd., (1943) 2 All E. R. 35; (1943) lK. B. 587 ; 169 L. T. 21 ; 59 T. L. R. 32.
y^PPEAL from a judgment of the District Court, Colombo.
H. C. de Silva, Q. C., with M. Underwood and C. V. Viveka-nantha, for the plaintiff-appellant.
W. N. D. Perera, Senior State Counsel, for the defendants-respondents.
Cur. adv. vult.
VIJIAJLAK ATNE, J.—Nadarajah v. Ceylon Transport Board
49
February 8, 1978. Wimalaratne, J.
This is an appeal by the plaintiff-appellant from a judgmentof the District Judge of Colombo dismissing an action institutedby him against the defendants-respondents for the recovery ofa sum of Rs. 200,000 as damages resulting from an accident inwhich he suffered severe injuries by being knocked down by aC. T. B. double decker bus.
The plaintiff alleged that he received injuries 'by reason ofbeing knocked down by a motor bus bearing No. 23, Sri 3294belonging to the 1st defendant and driven by the 2nd defendant.on 7th June, 1973, opposite the Fort Railway Station while hewas crossing the railway station approach road in front of thestation. At the trial the ownership of the motor bus by the 1stdefendant and the fact that the 2nd defendant drove the busat the time of the accident in the course of his employmentunder the 1st defendant were admitted. The plaintiff raised theissue as to whether the said accident was caused by the negli-gence of the 2nd defendant as set out in paragraph 6 of theplaint.
The evidence of the plaintiff was that having got down fromthe train arriving from Jaffna at about 7 a.m. he walked acrossto the bus halt in front of the station, and having seen a friendof, his named Arumugam on the island situated on the approachroad he left his bag at the bus halt and went across to the saidisland to speak to his friend. He was facing Olcott Mawathaand. his friend was facing the station when his friend told himthat the No. 134 bus was approaching. He turned back and sawthe bus coming at a distance of 50 yards. At this time he saysthe bus was coming slowly. He walked in the direction of thebus halt when the bus accelerated. Seeing this he stopped halfway. Then the bus came and collided with him. He fell downand did not know anything thereafter till he recovered conscious-ness in hospital.
The 2nd defendant said in evidence that he was driving thebus in question with passengers from Pettah and reached theapproach road to the Fort Railway Station driving at about 10m.p.h. when in front of the railway station which he had passed,a man jumped in front of the bus, very close to the bus. The2nd defendant’s version of what happened was as follows: —“ He jumped as from the right side to the left side. He jumpedvery close to the bus. At that time I applied the brakes of thebus. Thereafter he went back and again came to the front. Atthat time I applied brakes. But the bus dragged forward. Hewas very close to the bus. Thereafter that gentleman struckagainst the right mudguard of the bus.”
50
WI.MALARATNK, J.—Nadurajok v, Ct.yton Transport Board
The learned District Judge has dismissed the plaintiff’s actionon the ground that there was no negligence on the part of thedefendant, but that there has been entire negligence on the partof the plaintiff. The learned Judge has disbelieved the Plaintiff’sversion given at the trial in view of the fact that his statementto the police which was recorded in hospital on 8.9.73 (Dl)differs from this version in the following particulars: —
in his statement to the police the plaintiff stated that
he first saw the bus when it was about 10 or 15 feetaway. Thinking that the bus would reduce speed orstop, he said in that statement, that he jumped acrossthe road.
in Dl. the plaintiff stated that the right mudguard of
the bus struck hi? left leg causing him to fall down andthat his right leg was injured by the fall. But in cross-examination, however, the plaintiff attempted to takeup the position that the bus struck him on the rightside of. his body.
It has been submitted on behalf of the appellant that thelearned Judge has misdirected himself by his failure to considerthese contradictions in the background cf the evidence as awhole as well as by his failure to give proper consideration tothe plight of the plaintiff who was a patient with severe injuriessuffered only the previous day. Dr. Paramesweram, a surgeonof the General Hospital who examined the piaintiff said that onadmission his blood pressure was found to be very low and thathe was pale. He was resuscitated and when his pressure was120/30 he was taken up for surgery. The chief injuries were (a)a fracture of right humerus near the upper end, (b) afracture of the neck of the femur near its base also on the rightside, and (c) a compound double comminuted fracture of theleft tibia. He left hospital on 18th September, 1973, but theplaster of the left leg was removed only on the 20th of December,1973. The plaintiff himself said that he made a statement to thepolice on the day following the operation, and that as a resultof severe pain he was not in a suitable condition to make astatement. His left leg was completely plastered; the right handcould not be moved. His hand was bound to the body so that itmay not he moved. The learned District Judge does not appear tohave appreciated the plaintiff’s uncomfortable condition at thetime Dl was recorded, and has made no allowance for anymistaken impressions of distances which, a person in the positionof the plaintiff may have formed.
On the question as to which side of the bus struck which partof the plaintiff’s body, there does not appear to be muchdiscrepancy between the plaintiff’s evidence and the statement
WIMAX.AKATXE, J.—Nadarajah v. Ceylon Tranxporl Board
51
Dl. The plaintiff’s evidence was that he had no opportunity ofcrossing the road because in the attempt to do so he was knockeddown. To a question in cross-examination “ Q : Did you cross theroad or not ? ” the plaintiff’s reply was “ A : No, the bus struckme on the side of the right hand This was not considered acontradiction of the statement to the police because that portionof Dl was not even put to the plaintiff by defence counsel. Butthe learned District Judge has made much of this when he says :
“ Now he says he struck against the bus on his right handside. Generally a person who went from the right side ofa bus to the left side of the bus should strike against theleft side of the bus. He said so when he made the statementto the police but now he changes that also and says that hestruck against the right side. He had stated to the police 'that his left foot struck against the right mudguard in front.He was thrown to the right side and after his fall his rightfoot was injured. ”
A minute examination of the evidence of persons placed in aposition such as the plaintiff, in order to discover possiblecontradictions with a view to establishing negligence on theirpart is in my view not quite necessary. What is required firstlyis a consideration of the evidence in order to see whether therehas been negligence on the part of the driver of the vehicle.That the learned Judge has failed to do. He has either notconsidered at all or not given due weight to such factors as theviolence of the impact and the distance of 46 feet the bustraversed after the impact as indicative of its speed; the placewhere the accident occurred ; and the plea of guilt tendered bythe 2nd defendant in the Magistrate’s Court.
This accident took place on the approach road running infront of the Fort Railway Station, within the railway premises.This is a road where many people gather around, and a placewhere passengers go to and fro. There was, therefore, a highdegree of care cast upon drivers of vehicles and a duty to driveextremely carefully in order to avoid possible accidents. Theaccident took place about 24 feet in front of the bus halt, whichwas situated on the pavement. One would expect the bus to.have been driven alongside the pavement and halted at the bushalt, but the bus knocked down the plaintiff 24 feet in front ofthe bus halt, and thereafter proceeded a further 46 feet fromthe bus halt before it stopped. These facts show that the bus wasdriven at a speed excessive in the circumstances, and that thedriver also failed to keep to the left or near side of the highway.The learned Judge has failed to consider these facts in relationto the issue of negligence particularised in the plaint.
{>;!WIMALARATNIS, J.—Nndarajah Cr.i/lon Transport Board
The District Judge has attached no weight at all to the pleaof guilt tendered by the 2nd defendant to the second chargepreferred against him in M.C. Narahenpitiya case No. 97484/A.Two charges were preferred against him in respect of this sameaccident. The first was a charge of negligent driving in breachof section 151 (3) and the second was a charge of having failedto take such action as may be necessary to avoid an accident,in breach of section 149(1) of the Motor Traffic Act (Cap. 203).The action which the defendant failed to take was itemised asfollows in the Magistrate’s Court plaint P10 : —
failing to stop or reduce the speed ;
failing to keep a proper look out of the road ; and
failing to keep to the left or near side of the highway.The accused (2nd defendant) tendered an unqualified plea ofguilt to the second charge, whereupon the prosecution withdrewthe first charge. The accused was warned and discharged, butordered to pay Rs. 35 as Crown costs.
The learned Judge h^s accepted the 2nd defendant’sexplanation that he pleaded guilty to the second charge in thehope that he would be warned and discharged. But surely the2nd defendant’s plea amounted to an admission that he drovethis double decker bus on this occasion and failed to reduceits speed, failed to keep a proper look out and failed to keepto the left side of the highway, and thereby failed to avoidthis accident. In the light of this evidence it is difficult to seehow the learned Judge could have answered issue 4(b) relatingto inevitable accident in favour of the defendants.
In Hollington v. Hewthorn St Co. Ltd., (1943) 2 A.E.R. 35, aconviction of one of the defendants for careless driving washeld to be inadmissible as evidence of his negligence inproceedings for damages on that ground against him and hisemployer. But “ had the defendant before the Magistratespleaded guilt, or made some admission in giving evidence thatwould have supported the plaintiff’s case, this could have beenproved but not the result of the trial. ” per Goddard, L. J. atpage 42. The 2nd defendant’s plea of guilt in the Magistrate’sCourt was, therefore, most relevant and ought to have beentaken into consideration by the learned Judge in assessing ofthe plaintiff’s case.
For these reasons I would set aside the dismissal of theplaintiff’s action, and enter judgment for the plaintiff on theground of the 2nd defendant’s negligence.
In the event of this court holding with the plaintiff on theissue of negligence the District Judge has assessed the damages,
YV 1MAJLARATNE, J.—Nadarajah v. Ceylon Transport Board
53
the plaintiff should be entitled to at Rs. 59,923.75 made up as
follows : —
Special Damages : —
In lieu of half-pay leave for one yearSpecial items of nutritional food ..
Taxi hireSpecial attendantsAmbulance charges
Total ..9,923 75
General Damages. … Rs. 50,000.00
There is no controversy about the several items of specialdamages. Learned Counsel for the appellant contends however,that the award of Rs. 50,000.00 as general damages is inadequateunder the circumstances. •
In a claim for damages for personal injury, whether causedby negligence or otherwise, the damages are, apart fromspecial damages, at large, and will be given for the physicalinjury itself, and in case of disablement, for its effect upon thephysical capacity of the injured person to enjoy life as well asfor his bodily pain and suffering. “ Such damages cannot be aperfect compensation but must be arrived at by a reasonableconsideration of all the heads of damage in respect of which theplaintiff is entitled to compensation and of his circumstance,making allowances for the ordinary accidents and chances oflife.” Halsbury—Laws of England (3rd Edition), Vol. 11,paragraph 427.
The question we have to decide in appeal is whether thelearned District Judge's assessment of damages is not only onthe low side but also is so much on the low side that thisCourt should interfere with it and should increase it.
Dr. Parameswaram had examined .the plaintiff subsequentlyon 30th June, 1975, the day before he gave evidence at the'trial.On that date the fracture of the right humerus was well unitedand all movements were full. The fracture of the neck of thefemur was healed, with a residual deformity leading to ashortening of about 2 inch. The external rotation and movementsof his right hip are limited. The doctor is of the opinion that allacts of the right leg are limited and accordingly the plaintiff willfind difficulty in sitting cross legged, in squatting or in bendingto remove his shoes. The plaintiff had tremors of the hand evenprior to the accident. The accident had aggravated that condition,and consequently his handwriting is not normal.
Rs- c..
..4,96375
.. 2,000 00.. 1,000 00… 1,680 00280 00
54:
ItAJAKATNA.M, .r.—Xudnrujuh r. Cc.ylnu Transport. Hoard
After this accident there has been no loss in his salary incre-ments. He still continues to be employed in the Tamil section ofthe Broadcasting Corporation, and has been given work whichdoes not involve his going from place to place. His salary has notbeen reduced for that reason. He is now a little over 51 years ofage, and there is nothing to prevent him continuing in employ-ment until the age of retirement.
The most significant feature of the man’s post-accident condi-tion as at present established is that his right hip movement islimited, with the consequential disability referred to by thedoctor. The tremors of the hand were there even before theaccident. Account, has, however, to be taken also of the aggra-vation of that condition as a result of the accident. A considera-tion of all the evidence leads me to the conclusion that thelearned Judge’s estimate of general damages at Rs. 50,000 isreasonable, and should not be interfered with.
I would accordingly enter judgment for the plaintiff-appellantagainst the defendants-responder.ts in a sum of Rs. 59,923.75 withcosts both here and in the court below.
Rajaratnam, J.
I agree. In this case the order made by the learned DistrictJudge dismissing the plaintiff’s action must be set aside andjudgment be entered for the plaintiff as set out above.
The learned trial Judge has minutely examined the evidence ofthe plaintiff and not subjected the defendant’s testimony to thesame minute examination before arriving at a finding on thequestion whether the defendant had acted negligently. Moreoverthere were many items of evidence of a circumstantial naturewhich had not received serious consideration, e.g. :
the admission made by the defendant that he had failed totake the necessary steps to avoid an accident,
the absence of brake marks as against the oral testimonyof the defendant that he applied the brakes,
the fact that the bus careered a further distance of 46 feetfrom the point of impact in spite of the speed being 10 m.p.h. andthe vehicle was driven on third gear, and
the bus was being driven within the railway premises andthe point of impact was about 24 feet in front of a bus halt.
In motor ‘ accident ’ cases, there are almost invariably "manyitems of circumstantial evidence to support a plaintiff’s or adefendant’s case and in such cases it will not be in the interestsof justice to ignore them and depend solely on the credibility of
WI11ALARATN3, 7.—Chdliah v. Jansz
55
witnesses who may not while they reconstruct the happeningspresent too accurate a picture of the incident. In this particularcase, the proved circumstances contribute to establish theplaintiff’s case.
Walpita, J.
agree that this appeal be allowed and that judgment beentered for the plaintiff-respondent in a sum of Rs. 59,923.75 withcosts in both Courts.
The plea of guilt to the second charge by 2nd defendant cannotbe lightly ignored in considering whose negligence caused theaccident in this case. The plea means the 2nd defendant couldvery well have avoided the accident.
Appeal allowed.