Wije Bus Co., Z,td., «. Soysa
1948Present:Dias and Windham JJ.W1JE BUS CO., LTD., Respondent, and SOYSA, AppellantS. G. 400-401—D. C. Negorribo, 14,042
Negligence—Application of maxim res ipsa loquitur—Nature of burden ondefence—Explanation founded on evidence—Burden on plaintiff toprove negligence.
Plaintiff was injured as a result of the bus in which he was travelling-being driven off the road and overturning upon impact with a culvert-The driver of the bus gave evidence which was accepted that the accidentwas due to the steering lock giving way when he was about twenty1 (1914) 18 N. L. R. 174.
WINDHAM J.-—Wije Bus Co., Ltd., v. Soysa
feet from the culvert. The Judge, however, gave judgment for theplaintiff on the ground that the defence called no evidence to provethat the defect in the steering was not due to any default or negligenceon their part.
Held, that the Judge was wrong. Where the maxim res ipsa loquiturapplies, the burden on the defence is merely of giving .a reasonableexplanation of the accident provided it is not conjeotured but foundedon evidence. Where that is done the plaintiff has to show actualnegligence on the part of the defendant in order to succeed.
Sqfena Umma v. Siddich (1934) 37 N. L. It. 25 considered.
,/V PPEAT, from a judgment of the District Judge, Negombo.
If. W. Jayewardene, for defendant appellant in 401 and respondent in400.
N. E. Weerasooria, K.G., with G. T. Samarazoickreme and W. jO-GhinaseJcera, for plaintiff respondent in 401 and appellant in 400.
Cur. adv. vult.
December 10, 1948. Windham J.—
This is an appeal arising upon an action in tort for damages, brought bythe plaintiff-respondent, who was a passenger in a motor omnibus ownedby the defendant-appellant company and driven by its employee, in respectof injuries sustained by him as a result of the bus being driven off the roadand overturning upon impact with a culvert on the road side. The plain-tiff alleged that the accident was due to the negligence of the defendants’driver, and the learned District Judge, finding in his favour on this issue,awarded him damages in the amount of Rs. 2,500. Against this findingthe defendant company has appealed, while the plaintiff-respondent hascross-appealed on the ground that the damages were inadequate.
The question in issue on the main appeal is briefly this. The learnedDistrict Judge rightly found that the sudden running of the bus off the roadwas a fact from which negligence on the driver’s part might be presumed inthe absence of any explanation by the latter astohowtheaccident occurred.He went further than this, however, and held that the running of the busoff the road cast the burden upon the defence of proving that the accidentwas not due to any negligence on their part. The driver gave evidencethat the accident was due to the steering lock giving way when he wasabout 20 feet from the culvert which caused the bus to overturn. Thelearned District Judge accepted this evidence, and found that the accidentwas caused in the mannerstatedby the driver, namely, through the steeringgear having got out of control. He also made a finding, which in myview was warranted by the evidence, that the bus was being driven at aspeed of between 20 and 25 miles per hour, a speed which he quite properlyconsidered to be a normal one. Nevertheless he found that the defence
WINDHAM J.—Wije Bus Co., I.td., v. Soya a
lad failed to “ disprove negligence While accepting that the accidentwas due to the steering lock giving way, he went on to hold as follows :—
“ In this case the defence has not proved why the steering ball joint cameoft' the socket. The defence has called no evidence to prove that thisdefect in the steering was not due to any default or negligence on theirpart. There is no proof that this defect in the steering could not havebeen reasonably foreseen and remedied. In view of the decision in37 N. L. It. 25 and as the defence has not proved that the defect in thesteering could not have been reasonably foreseen and remedied by themand that it had developed suddenly and unexpectedly, I hold that it wasnegligent on the part of the defendant’s company to use this bus on theroad with a defective steering mechanism
I will refer presently to the case reported in 37 N. L. R. 25, on which thelearned District Judge relied ; but before examining the law on the subjectI will briefly review the evidence on which the learned District Judgearrived at his findings on the issue of negligence. The plaintiffhimself, a passenger in the bus, was unable to say what caused it to leavethe road. His evidence that the bus was* travelling at 35 miles per hourwas rejected. Neither he nor the other passenger whom he called to tes-tify stated that the steering gear showed any sign of being out of orderbefore the running off the road which immediately preceded the accident.The driver’s evidence on the cause of the accident I have already referredto, and the court accepted it. It was the only evidence on the point. Therelevant passages in it were as follows :—“ On the day of this accident
I was the driver of this bus. The bus left Kattukachchiya at 5 p.m. Thescene of the accident was about 1 miles from Kattukachchiya. I wasdriving the bus at about 15 miles per hour on this day. A little thisside of the scene of the accident, I noticed the wheels of the bus goingtowards the right hand side. I was driving on the left side of the road. Iturned the steering to the left but it did not answer. Just then the busstruck against the culvert. As soon as I applied the brakes, the bus col-lided with the culvert and it turned over … ”. (Cross-examined)
‘ ‘ I noticed that the steering did not answer when the bus was about 20 feetfrom the culvert .. As the steering lock had come out, I could
not stop the bus though I was driving about 15 miles per hour ….The road is full of pot-holes ”.
Save that he found the speed of the bus to have been from 20 to 25 milesper hour and not the 15 miles per hour alleged by the driver, the learnedDistrict Judge accepted the driver’s evidence which indeed was not con-tradicted (save as to the speed) by that of any other witness. The courtfurther found, upon the driver’s evidence and that of the District RevenueOfficer, that the road was a bad one, full of pot-holes and ruts, and wassome 14 feet wide. He also accepted the evidence of the Examiner ofMotor Cars, who inspected the bus after the accident. The latter’sevidence regarding the steering apparatus was as follows:—“I foundthe bus badly damaged. The steering hand had come out of the balljoint, in the ball and crank joint. If the steering had come out of theball joint while the bus was being driven, the bus would get out ofcontrol. I cannot say if the steering gave way before the accident or if it
WINDHAM J.—XVije Bus Co., Ltd., v. Soi/sa363
happened after the accident. A violent impact can cause the ball joint togive way …. I am unable to state if the accident was due to rashor negligent driving or due to an unavoidable accident. Bus drivershave to keep vehicles in good condition and roadworthy. This bus isabout 8 to 10 years old. There are older buses on the road. Thisbus plies daily on that road. ”
So much for the positive evidence. With regard to matters upon whichthere was an absence of evidence, it is to be noted that there was no evi-dence that the driver had had any previous trouble with the steeringgear, whether on any previous trip or upon the trip on which he was en-gaged, before the moment when the bus ran off the road. With regard towhether the driver or any official of the defendant company had inspectedthe steering apparatus recently or immediately before setting out on thetrip in question, there was no evidence one way or the other. The driverhimself did not volunteer any evidence on the point, nor was the questionput to him in cross-examination.
In the light of this evidence and of tHe findings upon it, I consider thatthe learned District Judge erred in holding that the defence had failedto discharge the burden which the law placed upon them, and inmy view he rated that burden too high. A case such as the present,where the evidence adduced by an injured plaintiff shows that he has-sustained his injuries by reason of a motor vehicle, driven by anemployee of the defendants (acting in the scope of his duty), havingrun off the road in its wrong side and overturned, is, I think, undoubtedlyone where, in the absence of explanation, the maxim “ res ipsa loquitur ”applies, and a prima facie case of negligence will be held to be madeout against the defence. The question is, however,, what is the burdenwhich its application casts upon the defence. This question has beenconsidered at some length in two South African cases, De Wet v.Adams 1 and Naude N. O. v. Transvaal Boot and Shoe Manufacturing Go. 2In both cases it was held that the burden cast upon the defence is not thatof proving the. absence of negligence, as was assumed by the learnedDistrict Judge in the present case, but is merely that of giving a reasonableexplanation of the accident,—an explanation which would negative thepresumption of negligence which the unexplained accident had raised-The explanation must, of course, be not only acceptable to the reason,but must also be founded on evidence. A mere suggestion or conjecturethat the accident may perhaps have been caused in such and such amanner will not be enough; there must be evidence that it was caused, or-was probably caused, in a particular manner. If this burden is dis-charged by the defence, the plaintiff will have to show actual negligence onthe defendant’s part in order to succeed. In the words of Lord Dunedin inBallard v. North British Railway Go. 3 cited with approval in De Wet v.Adams (supra)— “ if the defenders can show a -way in which the accidentmay have occurred without negligence, the cogency of the fact of the.accident by itself disappears, and the pursuer is left as he began, namely,,that he has to show negligence. I need scarcely add that the suggestionof how the accident may have occurred must be a reasonable suggestion
1 (1935) T. P. D. 247.2 (1938) A. D. 379.
3 [1923) 60 S. L. R. 449.
WINDHAM J.— Wije Bus Go., Btd., v. Soysa
Tinddall J.A., inNaude N. O. v. Transvaal Boot and Shoe Manufacturing Co.(supra) put the proposition thus :—“ This simple reference to elementaryprinciples leads to the clear conclusion that whether the case is one towhich the expression of res ipsa loquitur applies or not, the burden of pro-ving negligence is on the plaintiff who alleges it. When, therefore, theevidence on both sides is heard, if there is not a balance of probabilityin favour of the inference of negligence, the plaintiff must fail ”.
Applying these principles to the facts and findings in the present case, Ihold that the defendants discharged the burden which the running of theirbus off the road and into the culvert placed upon them, by explaining,through their driver (whose evidence was accepted), that the running offwas caused by a sudden failure of the steering apparatus. The evidenceof the Examiner of Motor Cars, and indeed common sense, support theconclusion that such a mishap would cause the bus to get out of control andthereby bring about the accident. The driver’s evidence being accepted,there remained no balance of probability in favour of the inferenceof negligence on the part of the defendant company or their driver, and theonus thereupon shifted back to the plaintiff to show either (a) that thegiving way of the steering lock was itself brought about by, or would not.have occurred without, negligence on the part of the defendant companyor their driver ; or (6) that after the giving way of the steering lock andbefore the impact with the culvert (which caused the bus to overturn) thedriver was guilty of some negligent act or omission but for which theaccident might have been averted. This latter point does not appearto have been argued below, nor was it considered by the learned DistrictJudge ; but where he went wrong was in holding, on the former point,that it was for the defence to prove that the failure of the steering was notdue to their negligence, rather than that it was for the plaintiff to provethat it was due to their negligence.
This burden the plaintiff failed to discharge, either on oral or circumstan-tial evidence. As I have said, there was no evidence one way or the otheron the question whether the steering apparatus was already worn or de-fective, or on the question whether the defendants had recently inspectedit. The burden lay on the plaintiff to establish the defendants’ negligencein this respect if they sought to rely on it, either by endeavouring to extractan admission from the driver or by calling evidence, expert or otherwise,to show a pre-existing worn or defective condition of the steering gear orthe absence or unlikelihood of a recent inspection of it. This they failedto do. Nor did the circumstances support the probability that there hadbeen no recent inspection, or that the steering apparatus was worn ordefective before the moment the bus ran off the road. Indeed, the factthat the bus had been driven without mishap for a mile and a half before itran off the road would seem to indicate that it was not out of order until. that moment. And with regard to the question what it was that mightreasonably be supposed to have caused the steering suddenly to fail (thoughit was not for the defence to prove positively what did so cause it) therewas the accepted evidence that the road was a bad one, full of pot-holes
WINDHAM J.— Wije Bus Co.. Ltd., v. Soysa
-and ruts. In brief, the plaintiff failed to show on a balance of evidencethat the giving way of the steering apparatus was due to negligence onthe part of the defendants.
On this aspect of the case, it is but fair to say that the learned DistrictJudge, in placing upon the defence the burden of proving that the failureof the steering apparatus was not due to their default or negligence, reliedon a two-judge decision of the Supreme Court, in Safenawmma v. SiddicJc 1,a case where the facts were somewhat similar. In that case, as in thepresent one, the defendant’s motor bus caused injuries to the complainantthrough running off the road, and the defence was that the steering gearbroke. The court held that the bare statement of one of the two defendantsto that effect was not sufficient to discharge the onus upon them. But withrespect, although I have no doubt that the ultimate decision in that casewas the right one, since there was overwhelming evidence that the bus wasbeing driven at an excessive speed, nevertheless I think the court appliedthe wrong principle when it laid down that the onus lay on the defen-dants to show positively that there was no want of care on their part.Dalton J. in his judgment in that case also went on to say that “ evenassuming that the steering gear was worn and defective but that the defen-dants had no knowledge of the defeet, to place a bus on the road in* thatcondition was a thing necessarily dangerous to users of the road and others,and it amounts to negligence ”. To this proposition, always assumingthat the defendants ought to have had knowledge of the defect, no excep-tion can be taken, but it is a little disconcerting to find, on perusing therecord of the evidence before the District Court whose judgment was thereappealed from, that there was in fact no evidence in that case, anymore than in the present one, that the steering gear was already worn anddefective. However, be that as it may, there was certainly in the presentcase no such evidence, and for the reasons I have given, it was for theplaintiff to adduce it, which he failed to do.
There remains the question whether the evidence discloses anynegligence on the part of the driver of the bus after he discoveredthat the steering apparatus was out of order and before the impactwith the culvert (which was the immediate cause of the over-turning of the bus) so that it could be said that but for suchnegligence the accident might have been averted. As I have statedearlier, this question does not appear to have been argued below,nor was it considered by the learned trial judge. Nevertheless ithas been raised here, and the evidence on the point must be considered.It is contended for the plaintiff that the driver was guilty of negligencein not applying his brakes immediately upon finding that the bus was run-ning towards the right hand side of the road, instead of first endeavouringto steer it back to the left of the road. The only evidence on the point wasthe driver’s own which I have earlier set out. His uncontradicted evidencewas that the spot at which he first noticed that the steering gear was outof order, that is to say, where he found the wheels of the bus going towardsthe right of the road and endeavoured to turn them back to the left, wasonly twenty feet from the culvert. Travelling at 20 miles per hour hewould thus have had about two-thirds of a second in which to decide what to
1 (1934) 37 N. L. R. 25.
WINDHAM J.—Wije Bus Go., Ltd., v. Soysa
do for the best, and it sems to me that he cannot be held to have been guiltyof negligent conduct in first trying to turn the bus from the culvert to whichit was heading, and in applying the brakes a mere fraction of a secondlater. Nor can it be certain or even probable that an immediate appli-cation of the brakes, while the bus was still travelling towards the right,would have averted the accident, bearing in mind that the width of theroad was only 14 feet and that he was already on the right hand side of it.The observations of Goddard J. in the English case of Hunter v. Wright1seem to me apposite in this connection. That was a case wherethe defendant’s car having skidded on a road through no fault of herown, the question arose whether she could still have averted theaccident which resulted from its mounting the pavement, had she, immed-iately after the skid, not accelerated, or had she turned the steering wheelin the direction opposite to that in which she did turn it. Goddard J. said :
‘‘ Once it has been decided …. that the car in which the lady wasdriving got into a skid through no fault of her own, it seems to me that it isabsolutely impossible to say that she had either the time or the space inwhich to correct the consequences of that skid. At the worst for her, it is asecond ; at the best for her, it is about two-fifths of a second. When onesays that, if she had turned the car one way, she might have done somethingor if she had turned the car another way, some other consequence mighthave happened I think that one is reduced to an element of speculation.It is like the question which is so constantly asked in running-down cases,and which is of every little use in deciding them : £ How quickly can youpull up your car if necessary? ’. If the true answer is given it is that noone knows how quickly one can pull up a car when going at any givenspeed. One may know how quickly one can do it in going through a test.If one is going past a particular point and knows that at that point one isgoing to pull on the brakes and see how quickly they will act, no doubtone can do it and get the record. In this case, however, the human mindhas to grasp the fact that something has gone wrong and has to decide how,to act. When one has got less than a second, and not more than 15 feet, orpossibly 20 feet, before the accident happens, it seems to me impossible tosay that, once the lady has shown that she skidded without any fault, anyfault remains in her, or that any possibility of fault remains inher ”.
While in cases of this kind one must look for general principles ratherthan for facts on all fours, the application of the above observations to thepresent case cannot be gainsaid, the circumstances .of the time and dis-tance during which the driver had to decide what to do for the best after-the car got out of control being so similar in the two cases. Applyingthe same line of reasoning I am unable to hold that any blame can attachto the driver in the present case for the action he took endeavouring toavoid the accident, or that he was therein guilty of any fault or negligence,so as to render the defendant company liable to the plaintiff in damagesfor the injuries sustained by him in the overturning of the bus.
For all these reasons, while fully sympathising with the plaintiff for theinjuries and resulting expenses which he incurred, I must allow the appealand hold that, the plaintiff having failed to prove that the accident was-due to any negligence on the part of the defendant company’s driver,1 (1938) 2 A. E. R. P. 625.
GRATTAKN J.—Ismail v. Thangiah
the company cannot be held liable to him in damages. The question of theadequacy of the damages awarded, raised in the cross-appeal, accordinglydoes not arise, and the cross- appeal is dismissed. In all the circumstances,however, while not attaching any blame to the defendant company, I thinkthe more equitable course would be to make no order for costs, eitherhere or below, but to let each party bear his own . I so order accordingly.
Dias J.—I agree.
WIJE BUSCO., LTD., Respondent, and SOYSA, Appellant