055-NLR-NLR-V-55-W.-H.-BUS-CO.-LTD.-Appellant-and-J.-SAMARANAYAKE-Respondent.pdf
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GRATIAEN J.—W. H, Bus Co., L'd. v. Samaranayake
Present: Gratiaen J. and Gunasekara J.W. H. BUS CO., LTD., Appellant, and J. SAMARANAYAKE,
Respondent
S. C. 427—D. C. Kandy, 2,545
Collision—Contributory negligence—Test of reasonableness—Damages for loss 6f
income—Proof necessary.
A collision took place between plaintiff’s hiring car and defendant’s omnibusat a junction where two highways met. Plaintiff’s car was admittedly beingdriven along the “ major road ”. Moreover, it had reached the junction beforethe other vehicle. –
Held, that the issue whether the plaintiff was guilty of contributory negligenceshould be decided by “ the test of reasonableness ” and depended on whether. the plaintiff, assuming he knew of defendant’s driver’s negligence, couldreasonably have been expected to avert the accident.
Held, further, that when the owner of a car which has been damaged claimsdamages for loss of income owing to the fact that he has been deprived of themeans of earning his living, he should adduce precise proof of the pecuniaryloss suffered.
./^PPEAL from a judgment of the District Court, Kandy.
S. J. Kadirgamar, for the defendant appellant.
H. W. Jayewardene, for the plaintiff respondent.
Cur. adv. wit.
May 15,1952. Gratiaen J.—
This is an appeal against a judgment awarding the plaintiff a sum ofRs. 3,000 as damages in respect of a collision which took place betweenhis motor car No. X 6571 and the Company’s omnibus No. C. E. 4836during the early hours of the morning of 18th March, 1946.
The plaintiff’s motor car, though of some antiquity, was in a serviceablecondition before the accident, and he used it to convey passengers for hirein the Kandy District. On the morning in question he was driving itfrom the direction of Katugastota along Trineomalee Street when thedefendant’s omnibus, which was being driven along Colombo Street,collided with it at the junction where the two highways intersect. Asa result of the impact the car was pushed some distance across the streetand sustained fairly substantial damage.
The learned District Judge found as a fact that the collision wascaused by the negligence of the defendant’s bus driver, and he awardedthe plaintiff (a) a sum of Rs. 2,000 as compensation for the estimateddamage to the vehicle and {b) a further sum of Rs. 1,000 “ as damages forbeing thrown out of employment for ten months before the action wasbrought
GRATIAEiST J.—W. H. Bus Oo. Ltd. v. Samaranayake
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In my opinion the decision in favour of the plaintiff .on the issue ofnegligence was perfectly correct. Trineomalee Street was admittedlya “ major road ”, and there was a notice which gave ample warning ofthis fact to the drivers of vehicles approaching the junction along ColomboStreet. Moreover, the plaintiff’s car had reached the junction before theother vehicle, and it was clearly a negligent act on the part of thedefendant’s driver not to have taken all reasonable steps within his powerto avoid a collision. Indeed, I would have been disposed to hold that,even if traffic proceeding along Colombo Street had been entitled to claimthe right of way, it was the negligence of the defendant’s driver whichin the circumstances of this particular case “ substantially caused theinjury ” x..
Mr. Kadirgamar has argued that in any event the plaintiff was himselfguilty of contributory negligence in not taking steps to avoid the im-pending collision. I am quite unable to accept this submission. “ Fastmoving traffic would become impossible if compliance with the ordinaryrules of the road on the part of those concerned could not, in the firstinstance, be taken for granted. The test to be applied in order toascertain when the person duly and properly using the road should waivehis rights is the test of reasonableness. As soon as it would be evident toa reasonable man that there is danger of an accident arising from theinability, refusal or neglect of the wrongdoer to give way, the rightfuluser of the road is bound to take all reasonable steps to avoid anaccident ” 1 2. As Innes C.J. points out, however, the conduct of a motoristplaced in such a situation “ is not to be judged in the light of subsequentevents, but by the standard of what a reasonable man would have doneat the time ”.
It is idle to suggest that, if his conduct be judged in the light of thisprinciple, the plaintiff could reasonably have been expected to avert theaccident which did occur. The time available for deciding how he shouldact “ in the grip of the impending disaster ” could not, at best, haveexceeded the fraction of a second, and I certainly do not construe hisattitude at this critical point of time as that of a man who obstinatelyinsisted, regardless of the consequences, that it was solely the other man’sbusiness to prevent a collision. The facts set out in the judgment ofRobinson v. Henderson 3 were entirely different. Adopting the languageof Lord Birkenhead’s classic expression of the principles of contributorynegligence in The Volute4, I would hold that “ in the ordinary plaincommon sense of the business ”, the negligence of the defendant’s driverwas “ the sole cause of the collision ”. The plaintiff must therefore becompensated for the pecuniary loss which he suffered in consequence.
I am satisfied that the learned trial Judge correctly estimated thecompensation payable for the damage sustained by the plaintiff’s vehicle.The estimated cost*of repairing the car was rather less than Rs. 2,000, andin normal circumstances, no doubt, this would have represented theproper sum to be awarded under this head of damages. But the evidence
1Swadling v. Cooper (1931) A. C. 1.
2Solomon et al. v. Mrissett <£ Bright, Ltd. (1916) S. A, A. D. 427.°
3(1928) S. A. A. D. 138.
* (1922) 1 A. C. 38.
184:
Pare.ro. v. Jftfedawela
shows that such repairs would uot have fully restored the car to itsearlier state of efficiency. In. these circumstances, th^ learned Judgeassessed the damage by reference to the extent to which the value of thecar had depreciated by reason of the accident, and in my opinion this wasthe proper method of approach to the question.’
With regard to the further award of a sum of Its. 1,000 for loss of income,
I think that the evidence on record was insufficient to justify the plaintiff’sclaim. His own evidence is extremely vague as to the period of timewhich elapsed before he succeeded in obtaining other employment afterthe accident occurred, and there is no material of any kind upon whicha Court could assess, except by a process of pure speculation, the loss ofincome sustained by reason of the damage to the vehicle. “ If the ownerof a car which has been damaged claims damages for loss of incomeowing to the fact that he has been deprived of the means of earning hisliving, he should adduce evidence as to his average daily income and,when the car has beenj^epaired, as to the time it took to be repaired.If it has not been repaired, evidence should be led to show how long itwould ordinarily take to repair the car ”J. Notwithstanding the absenceof such evidence, the learned Judge, purporting to “ take all thecircumstances into consideration ”, awarded a round sum of Its. 1,000 forloss of income. With respect, this is not a legitimate approach to thedetermining of an issue where the pecuniary loss claimed by a party is,by its very nature, capable of precise proof.
In my opinion the award of Its. 1,000 for loss of income should bedeleted, and I would accordingly vary the decree entered in the plaintiff’sfavour by restricting the damages to Its. 2,000. The plaintiff is entitledto his costs in the Court below, but these must be taxed on the footingthat the action was instituted for the recovery of Rs. 2,000 only. Eachparty has partially succeeded upon this appeal, and I would thereforeaward no costs of appeal to either side.'
Gtxnasekaba J.—I agree.
Decree varied.