v.SAMARANAYAKE AND ANOTHER
COURT OF APPEALWIJETUNGA, J. ANDISMAIL. J.
A. APPEAL NO. 211/88(F)
C. ANURADHAPURA11952/M23 AUGUST 1991
Delict – Negligence – Burden of proof – Res ipsa loquitur – Damages.
A lorry ran off the road crashing into the plaintiff’s retail shop and destroying thebuilding with its stock-in-trade allegedly because the spring blades gave way. Ina suit for damages –
The maxim res 'ipsa-'loquitur applies and the proved facts constituted, in theabsence of an explanation, prima facie evidence of negligence.
A bare statement that the accident arose as a result of a part of themechanism giving way at!a crucial moment does not displace thepresumption which arises from the maxim resipsajoquitur.
The burden on the defendant where the maxim res-ipsa loquitur is applicableis not only to give a reasonable explanation but also to show that the specificcause of the accident did not connote negligence on his part. The onus is onthe defendant to show positively that there was no want of care on his partlike periodical checks, attending to necessary repairs and doing everything inhis power to ensure the mechanical soundness of the lorry. This thedefendant had failed to do and the plaintiff was entitled to damages.
Cases referred to:
Barkway v. South Wales Transport Co., Ltd., (1950) 1 AER 392,403.
Safenaumma v Siddick (1934) 37 N.L.R. 25
Wife Bus Co., Ltd., v. Soysa (1948) 50 N.L.R. 350,353.
Arthur v. Bezuidenhout and Mieny (1962) (2) S.A.LR. 566, 575.
Na'udeyN. 0. v. Transvaal Boot and Shoe Manufacturing Co., (1938) A.D. 379,
Salmons y. Jacoby 1939 A.D. 588.
Cabral v Alberatne (1955) 57 N.L.R. 368.
Punch! Singho v. Bogala Graphite Co., Ltd., (1967) 73 N.L.R. 66.
APPEAL from judgment of the District Judge of Anuradhapura.
R. L. N. de Zoysa for plaintiff-appellantDefendants-respondents absent and unrepresented.
Cur adv vult.
10th October, 199.1.
this is an appeal from the District Court dismissing the plaintiff’saction in which he sought to recover loss and damages resulting froma negligently driven lorry veering off the Anuraidhapura-Kurunegala.road at Sravasthipura and crashing, into his retail shop which stood15* – 30’ away from the road, on the right side,- completely destroyingit together with its stock-in-tradeS. Admittedly, the lorry bearingdistinctive No. 26 Sri 3410 belonging tgthe 1st defendant-respondentwas driven on the 2nd of April 1986, at about 8.30 or 9 p.m. at thetime of the accident by the 2nd defendant-respondent, acting withinthe scope of his employment. The learned District Judge held thatthis was a sudden and inevitable accident and dismissed theplaintiff’s action as he had failed to establish negligence on tfie partof the driver. The learned Counsel for the plaintiff-appellant submittedthat the admitted facts were eloquent of. negligence on the part of thedriver and that in the circumstances, the trial Judge misdirectedhimself by placing the burden of proving negligence on the plaintiff,without making an evaluation of the evidence of the driver toascertain whether it displaced the inference of negligence on hispart.,
The maxim res ipsa loquitur hasits common application vi/here theplaintiff is not in a position to produce.direct evidence of the conductof the defendant. In certain circumstances the mere fact that anaccident has occurred raises an inference of negligence andestablishes a prima facie case which calls for an answer by thedefendant. Lord Radcliffe in Barkway v. South Wales Transport Co.Ltd.m found nothing more in the maxim than a rule of evidence "ofwhich the essence is that an event which in the ordinary course ofthings is more likely than not to have been caused by negligence isby itself evidence of negligence”. Res ipsa loquitur means what itsays, that in certain circumstances the thing, that is the occurrence,speaks for itself. The familiar type of situation where the maxim hasbeen invoked is where the plaintiff suffered injury either to person orproperty as a result of a motor vehicle running off the road. InSafenaumma v. Siddick0 where it was proved that a bus which wasdriven along the road at a fast speed, suddenly left the road andknocked down a boy standing on the doorstep of a house, the
proved facts constituted, in .the absence of an explanation, primafacie evidence of negligence. A witness stated by way of anexplanation that the bus went straight on and ran into a houseknocking the child.down because “the steering gear” broke. Dalton,J. said, "a statement of that kind of course in no way discharges theonus on the defendants or' show there was no Want of care on theirpart", The bare statement that the accident arose as a result of a partof the mechanism giving way at a crucial' moment did not displacethe presumption which arose from the maxim res ipsa loquitur.
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A different view was men by Windham; J. in the case of Wije BusCo. Ltd. v. Soysa<s> where the plaintiff was injured when a bus inwhich he was travelling went off the road and overturned uponimpact with a culvert on the roadside. The driver of the bus gaveevidence which was accepted by the trial Judge as credible, that thesteering lock gave way when he was about 20 feet from the culvertwhich caused the bus to overturn. The Examiner of Motor Vehicles,who inspected the vehicle after the accident was unable to saywhether the steering lock gave way before the impact, but he agreedthat the steering lock had given way and that if this happened whilethe bus was being driven it could get out of control. The DistrictJudge following the judgment inSafenaumma v Siddick (supra) heldthat the defendant Company .was liable in damages as it had notproved that the defect in the steering could not have beenreasonably foreseen and remedied. In appeal, Windham, J. whoconsidered the'judgment in Safenaumma v. Siddick expressed theview that the Court in that case applied the wrong principle when itlaid down that the onus was on the defendant to show positively thatthere was no want of care on their part. Windham, J. sought toexplain the burden cast on the defence upon the application of themaxim and held that it was not necessary for the defendants to go sofar as to prove the absence of negligence on their part but that it wassufficient if they were able to give an explanation of the accidentwhich would negative the presumption of negligence arising from theunexplained accident.
In the instant case the evidence of the driver was that the frontspring blades had given way from the anchor to which they wereattached by a pin when he was proceeding at a speed of about 15k.p.h. The front wheels turned suddenly to the right side end he wasunable to straighten them, and though he made every effort 'to controlthe vehicle he lost control of it. He was of the vfew thstTwhen thespring blades give way the vehicle cannot be brought to a half byapplying the foot brakes. He found that the spring blades had givenway on an examination of the vehicle after the.collision but he wasunable to say whether this occurred before or after the impact. Therewere no other eye-witnesses to the accident.. Afttfough there were twoother passengers in the lorry, which was loaded with 150 cases ofempty bottles of soft drinks, they were not called as witnesses. TheExaminer of Motor Vehicles who may have, inspected the vehicleafter the accident and the police officer who visited the sceneimmediately after the accident and made observations were notcalled. Thus there was no evidence as to the condition of the road, itswidth, as to whether it was a,straight road or not, the location of theshop and its distance from the edge of the road. There was noevidence either as to the condition of the tyres of the lorry, as towhether its lights and wiper blades were in working order consideringthat there was a drizzle that night at the time of the accidentaccording to the evidence of the driver. There was no cross-examination of the driver to elicit further details of this mechanicaldefect and its effect, as to whether it could have affected theapplication of the brakes to bring the vehicle to a halt when thevehicle was proceeding at a very slow speed. The owner .of thevehicle stated that this lorry was purchased by him. in 1976 and thatin January 1986, about four month? prior to the accident; its bodywas replaced and its engine and gear box were completely repaired.He had also got the spring blades.repaired and after its repair he hadno complaints from the driver as to any mechanical defect in thevehicle which plied regularly between Anuradhapura and Colombo.The driver stated that he heard no noise from the spring blades toindicate that there was any defect .in it but he conceded that if thevehicle was in a good condition it could have been brought to a haltby applying the brakes. He also said that a repair to the vehicle wasdone two weeks prior to this accident but he did not give otherdetails regarding this repair.
The learned District Judge has not expressed his opinion on theevidence of the defendants but has merely stated that if the driver
lost contrqlof the vehicle due to his inability to apply the brakes afterthe sprfpgTblades gave way the accident was not due to thenegligence of the driver and that in the circumstances this was aninevitable accident. He further held that the burden was on theplaintiff to prove negligence on the part of the driver in view of hisexplanation as to the cause of; the accident. It would have been moresatisfactory if the-trial Judge had scrutinized this explanation andexpressed his opinion regarding it.
Windham, J. in WijeBus Co. Ltd. v. Soysa(3) clarified the nature ofthe burden cast upon the defence upon the application of the maximand stated that the explanation negativing the presumption ofnegligence must be not only acceptable to reason but must also befounded on evidence. “A mere suggestion or conjecture that theaccident may perhaps have been caused in such and such amanner will not be enough; there must be evidence that it wascaused or' was probably caused, in a particular manner." It is onlywhen this burden is discharged that the plaintiff will have to show theactual negligence on the defendant’s part in order to succeed. InSouth African cases it has been pointed out that “mere theories orhypothetical suggestions will, of course, not avail the defendant”(Arthur v. Bezuidenhout and Mien/4)), “that there must be somesubstantial foundation in fact for the explanation” (Naude N. O. v.Transvaal Boot and Shoe Manufacturing Co.(5)) and that “thedefendant in" order to succeed had to produce evidence sufficient to, displace the inference of negligence” (Salmons v. Jacobf*.)
Applying these guidelines ;to the evidence in the instant case I amo.f the view that the explanation tendered by the driver as to thecause of the accident was not sufficient to displace the inference ofnegligence on his part. A defendant in seeking to displace theinference of negligence arising upon the application of the maxim resipsa loquitur should offer evidence based upon supporting facts toexplain an occurrence which, if true, is very rarely and exceptionallyencountered in the ordinary course of human experience.
The Supreme Court has not followed the views expressed byWindham, J. in Wije Bus Co. Ltd. v. Soysa on the question of theburden of proof which the application of the maxim casts upon thedefence. The reference by Dalton, J. In Safenaumma v. Siddick to the"onus on the defendants to show that they were not guilty of any wantof care” has been cited in two later cases, Cabral v. Alberatne,m andPuhchi Singho v. Bogala Graphite Co:, Ltd.w and the decision in thatcase has been approved.
. In Cabral v. Alberatnef* a motor truck belonging to the defendantran into the plaintiff’s house which was about six feet away from theedge of the road and stood at a bend in the road. The defendantpleaded inevitable accident. He sought to rebut the inference ofnegligence arising from the maxim res ipsa loquitur by stating thatthe immediate cause of the accident was that the steering rod got outof place at the crucial moment. He did not adduce any evidence asto how and why the steering rod came out of place. There was noevidence that the vehicle was regularly serviced or serviced at all.Even the Motor Car Examiner who examined the vehicle had notbeen surrtmoned by the defendant to give evidence. The barestatement of the driver in the circumstances that the steering rodgave way was found not sufficient to displace the prime facie case ofnegligence arising from the application of the maxim res ipsa loquitur.It was held following the earlier case of Safenaumma v. Siddick(2) thatthe steering rod went out of control was no answer unless thedefendant proved and the legal burden was on him to prove that itwas no fault of his that the steering rod failed.
In Punchi Singho v. Bogala Graphite Co., Ltd.m the 1st defendant’slorry driven by the 2nd defendant swerved to the wrong side of theroad and collided with the plaintiff’s lorry which was moving on itscorrect side in the other direction. The plaintiff claimed extensivedamages to his lorry. The evidence showed that the accident wasdue to a sudden disorder in the steering mechanism of thedefendant’s lorry. It was held that the maxim res ipsa loquitur wasapplicable and that the burden was on the owner to satisfy the Courtthat he caused periodical checks and had the necessary repairsattended to and did everything in his power to ensure the mechanicalsoundness of the lorry.
Thus the burden on the defendant where the maxim res ipsaloquitur is applicable is not only to give a reasonable explanation butalso to show that the specific cause of the accident did not connotenegligence on his part In the present case the defendants have notsucceeded in offering a -reasonable explanation of the accident todisplace,the prima facie inference of negligence which theunexplained accident has raised. I therefore set aside.4he;finding ofthe learned District Judge in which he has held that’this was aninevitable accident in view of the explanation tendered by the driverof the lorry.
The learned District Judge has also held that the plaintiff has failedto prove the damages claimed by him. The plaintiff claimed a sum ofRs. 150,000/- as loss and damages and a further sum of Rs. 7500/-by way of continuing damages. The trial Judge has found that theplaintiff had not adduced sufficient evidence to justify his claim thathe had a monthly income of Rs. 8000/- to Rs. 9000/-. However, itappears that the plaintiff has assessed the value of the damagedbuilding at Rs. 45,000/-, its fixtures at Rs. 18,000/- to Rs. 20,000/- andthe cost of getting electricity connection at Rs. 5,000/- and theseassessments have not been disputed. I am therefore of the view thata reasonable estimate of his damages taking into account also theloss in transacting business immediately following the accident wouldbe Rs. 85,000/-. For these reasons 1 set aside the finding of theDistrict Court and enter judgment for the plaintiff-appellant in a sumof Rs. 85,000/- and allow the appeal of the plaintiff-appellant withcosts.
WIJETUNGA, J. – / agree.
SUBAWICKREMA v. SAMARANAYAKE AND ANOTHER