017-NLR-NLR-V-73-W.-G.-PUNCHI-SINGHO-Appellant-and-BOGALA-GRAPHITE-CO.-LTD.-and-another-Res.pdf
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Pvnchi Singho v. Bogota Graphite Co., Ltd.
1967' Present: G. P. A. Silva, J., and Siva Supramaniam, J.’j
W. G. • PUNCHI SINGHO, Appellant, and BO GALA ’ GR APHITECO., LTD., and another, Respondents ,
S. C. 57/66 (P)—D. 6. Avissawella, 11490JM.. -;■. Delict—Collision—Negligence—Mechanical defect—Res ipsa loquitur—-Burden ofproof.*
Plaintiff claimed damages caused to his lorry by a collision between his lorry,and the 1st defendant’s lorry. The evidence showed that the 1st defendant’slorry, which was being driven by the 2nd defendant, was on the wrong side of •the road when it struck the plaintiff’s lorry and that the accident was due to.. a sudden disorder in the steering mechanism of the defendant’s lorry. –
G. P. A. SILVA, J.—Httnchi Singho v. Bogota Graphite Co., Ltd.
67
Held, that the maxim res ipsa loquitur was applicable. The burden was onthe 1st defendant to satisfy the Court that ho caused periodical checks andhad necessary repairs attended to and did everything in his power to ensurethe mechanical soundness of his lorry.
ll'ije Bus Co. Ltd. v. tioi/su (50 X. L. R. 350) not- followed.
-A.PPKAL from a judgment of the District Court, Avissawella.
Ralph de Silva, for the 1st defendant-appellant.
J. Kauthasam;/, for the plaintiff-rcspondent.
Our. adv. vu.lt.
September 20, 1967. G. P. A. Silva. J.—
The plaintiff respondent in.this case brought this action against the1st defendant appellant and the 2nd defendant respondent for therecovery of a certain sum being the cost of the damage caused to hislorry as a result of a collision between his lorry and a lorry belonging tothe 1st defendant and driven by the 2nd defendant at the time of theimpact. The allegation of the plaintiff was that the collision was dueto the negligence of the 2nd defendant in that he—
drove his vehicle without a proper look out and/or
drove his vehicle without due care or precaution and/or
failed to keep to the left or near side the road and/or
(fl) failed to stop on seeing the lorry belonging to the plaintiff.
The defendants in their answer denied these allegations and furtherstated that the collision was due to an inevitable accident. Severalissues were raised of which (he material ones were :
Was the said collision an inevitable accident in that the steeringlock of the lorry driven by the 2nd defendant suddenly and unex-pectedly, gave way,
If so, is the 1st defendant liable,
Was the failure of the steering mechanism due to the negligenceof the 1st defendant and/or the 2nd defendant.
The learned District Judge answered issue (1) in the negative as a resultof which the answer to issue (2) did not arise. He also answered issue
in the following terms ** The failure of the steering mechanism wasduo to the negligence of the 1st defendant ” and awarded damages tothe plaintiff in a sum of Rs. l,5S7/0.>.
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0. V. A. SILVA, J.—-Punch! Sinyhi r. I! 03 a hi Graphite Co., fjtf..
Although several grounds were set out in the petition of appeal, theonly ono which was seriously argued was 1 hat the learned ,Dist rict Judgewas in error in holding that (ho failure of the steering mechanism wasduo to the negligence of the 1st defendant in not having – taken thenc'cessary precautions for the avoidance of the defect in the .steeringmechanism which caused the accident. The decision taken by the District. Judge revolves round the question, to what extent the owner' of a. mechanically driven vehicle- is liable for a defect in the mechanism.
The facts relevant to this question were not seriously contested and,it was shown that the 1st defendant’s lorry driven by the 2nd defendant,swerved to tho wrong side of the road and collided with the plaintiff’slorry which was proceeding on its correct side in the opposite directionand causcd damage to the right front mud guard lights and buffer of that-lorry. Thd :2nd defendant promptly informed the driver of the plaintiff’slorry that the steering mechanism of his lorry had got locked and resultedin the'accident. The evidence for the plaintiff therefore established a•piima facie case of negligence by the operation of the principle of ‘ resipsa loquitur ’ and it was for the defendants to discharge tho burdenattaching to them. The learned District Judge took the view that the1st defendant had not discharged the burden placed on hint, and enteredjudgmentfor the plaintiff.' ;
The question raised is one which lias received consideration bj’ courtsboth here and in England from time to time and several cases werecited during the argument. In Safena Umma v. Siddick,1 where itwas proved that a bus, which was driven along the road at a first speed,,suddenly left the road and knocked down a boj' standing on the doorstepof a house it was held by Dalton J. that the frets proved constituted,in the absence of an explanation, a prinra facie case of negligence. He.cited with approval the following passage from a .judgment of Eric C.J.j. in Scott v. London & St. Katherine Docks Company 2
“There must be reasonable evidence of negligence.. But wherethe things is shown to be under the management of the defendant or‘; . his servants, and the accident is such as in. the ordinary course of things' docs hot happen if those who have the management use proper care,it affords reasonable evidence in the absence of explanation by thodefendants that the accident arose from want of care. “ -* *
The principle enunciated in this passage has generally been followed insubsequent cases.
J v A somewhat different view was taken by Windham J. in the caso ofWije Bus Co. Lid. v. Soysa 3.. In that case, a passenger of a motor bus,which went.off the road and overturned upon impact with a culvertclaimed damages for injuries caused to him by reason of negligence of .. *37 N. it. R. 25.*3 H. <fc C. 590. .
'(1248) SON. L. R. 350.
O. t*. A. StLVA, J.—Punchi Singho v. Bogota Graphite Co., Ltd.
69
the driver of the bus. The driver gave evidence that the accident wasdue to the steering lock giving way when he was about 20 feet- from theculvert which caused the bus to overturn. The District Judge, whileaccepting this evidence, held following the judgment in Safena Umma v.Siddick, that the defendant company was liable in damages as it hadnot proved that the defect in the steering could not have been reasonablyforeseen and remedied. In appeal however, it was held by Windham J.with whom Dias J. agreed that, although the maxim * res ipsa loquitur ’applied in that case in tho absence of an explanation, it was not necessaryfor the defendants to go so far as to prove the absence of negligence ontheir part but that it was sufficient if they wero able to give an explanationof the accident which would negative the presumption of negligence whichthe unexplained accident had raised. Windham J. sought support forhis decision from two South African cases which are referred to in thejudgment.
This judgment however was not followed by K. D. de Silva J. in thecase of Cabral v. Alberalne1 when it was held, following the earlier case ofSafena Umma v. Siddick, that where the doctrine of ‘res ipsa loquiturwas applicable the burden on the defendant was not only to give areasonable explanation of the accident in question but also to showthat the specific cause of the accident did not connote negligence on hispart.
Thcfacts of the Safena Umma case bear some similarity to those of theinstant case in that the defence in that case too was that the steeringgear broke and DaltOn J. expressed the view that a bald statement ofthat nature by a witness for the defendants did not dischaige theironus or show that there was no want of care on their part. In theinstant case too all the evidence that the defendant produced was throughthe Works Manager of Rowlands Ltd., who stated t-liat in his experiencehe had sometimes come across cases where the steering had got lockeddue to a latent defect and that the vehicle could not be straightenedwhen it happened. In answer to Court however he stated further that thecompany did not examine the mechanism to see why the steering gotlocked. This evidence without moro docs not in my opinion dischargethe onus of the first defendant to show that he had exercised all the careor, for a matter of that, any care at all, to see that the vchiclo was ingood condition. If it is sufficient for a defendant merclj* to show thatany particular accident was due to a mechanical defect, there would bohardly any scope for tho application of the principlo which imposes anobligation on those who have the management of a vehicle to use propercare against possible mechanical defects. This principle has endured solong because of its eminent reasonableness. Else it would hardlyever be possible for a plaintiff to succeed in an action unless ho hadintimate knowledge of a defendant putting on the road a vehicle knownto be defective in its mechanism. Nor will any user of a vehicle be ,obliged to have a periodical chock of his vehicle for mechanical defects.
‘ (1955) 57 N. L.It. 368.
70 G. P. A. SILVA, J.—Punchi Singho i Bogota Graphite Co., Ta<1.
When a case, in which the doctrine of res ipsa loquitur operates,.occurstherefore I think that a defendant is obliged to satisfy the court thathe did cause periodical checks and had necessary repairs attended toand did everyting in his power to eliminate mechanical unsoundness.In the absence of such evidence lie would not, in ray view, have discharged. his burden.
It seems to me that the view of Windham J., which derived supportfrom the South African cases, is tantamount-to a pronouncement that allthat a defendant who has to counter the doctrine of ‘ res ipsa loquitur ’has to do is to point to the actual .or probable reason for the accident asbeing a mechanical defect and that thereafter the plaintiff reverts tothe original position of having to prove actual negligence.- With greatrespect, this is a view with which I find it difficult to agree.
When one analyses the question, one is compelled as a starting pointto proceed from the basis that a person who puts on the road a mechanicallypropelled vehicle lias an initial duty to exercise sufficient care tosee that such mechanical defects as would constitute a damage to otherusers of the road are avoided. Among such mechanical defects wouldbe the steering gear and the braking system the efficiency of which areof primary importance for the safety of other users of the road. As towhether sufficient care has been exercised in this regard is a matterwithin the peculiar knowledge of the owner of the vehicle and not of theperson who has been the victim of an accident. It would thereforeseem unreasonable to require from the latter the necessary evidence toprove that sufficient care was not exercised by the owner of the vehicle.The only reasonable course is for the owner of the vehicles which causedthe damage to show that he had exercised reasonable care to ensure itsmechanical soundness. Until such evidence is produced, the ownerwould not, in my judgment, discharge the onus that lies on him tonegative the situation created by the operation of the ‘ res ipsa loquitur ’doctrine. If a defendant does not choose to adopt such course it isreasonable to presume that he does not do so as the necessary evidenceof the exercise of proper care is not available to be produced.
These are the reasons which compel me to agree with-the views expressedby K. D. de Silva J. which are also in full accord with the pronouncementmade by J2rle O.J. in Scott v. London <fc St. Katherine-Docks Companysreferred to in the earlier part of this judgment. I accordingly hold-that the learned District Judge rightly arrived at the conclusion hedid..
. The appeal is dismissed with costs.
Siva Supramaniam, J.—I agree.
Appeal dismissed.
‘ J,. * '