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E.B. OYEDIRAN AND OTHERS
D.A. ODEPEGBA AND ANOTHER
FEDERAL SUPREME COURT OFNIGERIA
20TH DECEMBER, 1956.
BEFORE THEIR LORDSHIPS:
OLUMUYIWA JIBOWU, Ag. F.C.J. (Presided)
M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)
PERCY CYRIL HUBBARD, Ag. F.J.
TORT AND PERSONAL INJURY – Negligence – Res ipsa loquitur – Application of.
TORT AND PERSONAL INJURY – Negligence – Vehicle in stationary position on proper side of road – Another vehicle from opposite direction crashing into it for no reason – Inference of negligence – Application of the maxim ‘res ipsa loquitur’
PRACTICE AND PROCEDURE – DAMAGES – Loss of earnings – Assessment of – Principles applicable.
Adewale Thompson – for the Appellants.
DE LESTANG, F.J. (Delivering the Judgment of the Court): The appellants were the owners of a motor lorry which was used to carry goods and passengers between Lagos and Oyo. On or about 8th September, 1952, while on its way to Lagos, it broke down on the main road some 50 miles from Lagos. It was accordingly parked underneath a tree on its proper side of the road while the driver went to get assistance. During the night of 10th/11th September a lorry belonging to the respondent was being driven by his servant, respondent 2, in the opposite direction, namely, from Lagos in the direction of Abeokuta, when it collided with the appellant’s lorry, causing damages to its front portion.
The first question for decision is whether the learned Judge was right in holding that on those facts the appellants had failed to prove negligence on the part of the respondent 2. In my view, he was clearly wrong. It is true that the evidence was rather slap-dash and bare. There was, for example, no evidence of the nature of the road or of its width, except that it was a main road. Again, there was no evidence of the exact position of the appellant’s lorry on the road, or whether it was lighted up at night, and so forth. Nevertheless, when a vehicle is stationary on its proper side of the road and another vehicle coming from the opposite direction crashes into it for no reason at all, it is impossible to avoid the inference that the latter vehicle must have been driven negligently. Were it being driven on its proper side of the road, no collision could possibly have resulted.
Similarly, were it being driven with proper care and attention, no collision could have happened. It is, in my view a typical example of the application of the maxim “res ipsa loquitur,” because unless a good explanation is forthcoming from the respondents an inference of negligence must necessarily flow from the fact of the accident itself. But there is even more in the present case. There was evidence that respondent 1 blamed his driver, respondent 2, for the collision, and said that it was due to the fact that he was drunk. He clearly accepted liability for it and three days after the accident undertook to pay the cost of repairs to the appellant’s vehicle. Respondent’s conduct in itself suggests that the collision was due to the negligence of respondent 2 and it is difficult to imagine how the learned Judge could have arrived at a different conclusion.
The next question is to what damages are the appellants entitled? The damage to the vehicle caused by the collision has been fully repaired, and they are consequently not entitled to anything therefor. They claim, however, loss of earnings during the time that the vehicle was immobilised as a result of the accident at the rate of £15 per day. The learned Judge found that the earnings of the vehicle would not amount to more than £5 per day and that “the period of 60 days may safely be regarded as the period during which the plaintiffs’ vehicle was not available for their use by reason of the accident.” On that basis the appellants would be entitled to no more than £300. It must, however, be borne in mind that the vehicle was not in good condition at the time of the accident, and that it is most unlikely that it could have been used every day for transporting goods and passengers. In fact, when the accident occurred, it had broken down with extremely serious damage to its engine, which had immobilised it already for two days and would in all probability have immobilised it for several more days. These factors must be taken into consideration in assessing the damages, and bearing them in mind, I would assess the damages at £180.
I would accordingly allow this appeal and enter judgment for the appellants against the respondents for £180 with costs, both in this Court and in the Court below, which I would assess at 38 guineas and £36 respectively.
JIBOWU, AG. F.C.J. I concur.
HUBBARD, AG. F.J. I concur.