3PLR – ORAJEKWE V. MBIERI

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com nd info@lawnigeria.com or text 07067102097]

ORAJEKWE

V.

MBIERI

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 345/1960

5TH JANUARY, 1962

3PLR/1962/116 (FSC)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

EDGAR IGNATIUS GODFREY UNSWORTH, F.J.
(Presided and Read the Lead Judg­ment)

JOHN IDOWU CONRAD TAYLOR, F.J. (Dissented)

SIR VAHE BAIRAMIAN, F.J.

 

BETWEEN

BEN ORAJEKWE

 

AND

1. OKOROAFOR MBIERI
2. EDWARD EBURUE

 

MAIN ISSUES

PRACTICE AND PROCEDURE – EVIDENCE – Doctrine of res ipsa loquitur – When applicable.

PRACTICE AND PROCEDURE – Allegation of res ipsa loquitur – Duty of trial court.

PRACTICE AND PROCEDURE – Motor accident cases – Statement of claim – Guide as to drafting of.

PRACTICE AND PROCEDURE – Pleadings – Pleading a specific act of negligence – Whether bars reliance on res ipsa loquitur.

PRACTICE AND PROCEDURE – Pleadings – Purpose and purport of

PRACTICE AND PROCEDURE – Pleadings – Res ipsa loquitur – How pleaded.

TORT AND PERSONAL INJURY – Negligence – Evidence of probable cause of accident – Whether dis­places prima facie case of negligence.

TORT AND PERSONAL INJURY – Res ipsa loquitur -When applicable -Drawing of maxim thereof infe­rentially from facts – Validity of.

 

REPRESENTATION

 

Chief M. E. R. Okorodudu -for the Appellant.

Mr. B. O. Benson -for the Respondents.

 

UNSWORTH, F.J. (Delivering the Lead Judgment): This is an appeal from a judgment of Savage, J., in which he dismissed the appellant’s claim for damages for personal injuries sustained by the alleged negligent driving of a taxi in which the appellant was a passenger.

 

The appellant, in his statement of claim, pleaded, inter alia:­

 

“10.   After travelling about 5 miles from Aba/Port Harcourt Road, the plaintiff noticed that the speed at which the first defendant was going was very high and accordingly warned the first defendant whom he told that the speed was in excess of 60 miles an hour.

 

11. The first defendant told the plaintiff not to be afraid as he (first defendant) was not a new hand to the steering. And further that he was hurrying to Port Harcourt to listen to the report of a foot­ball match in Lagos that evening.

 

12. The first defendant later overtook a new car much heavier than that of the first defendant, which was an old “Morris Minor”.

 

13. The plaintiff again told the first defendant of the excessive speed at which he was going pointing to the first defendant the fact of his overtaking a new and heavier car with much faster speed than his own. The car overtaken by the first defendant was lost in sight about a minute after. The first defendant paid no heed and con­tinued to speed.

 

14. About 2 minutes after overtaking the new car the first defendant lost the control of his car.
15. The car ran into the bush and collided with an oil bean tree on the side of the road. The Plaintiff as a result had a fracture of his left femur and sustained other injuries to his person.”

 

The respondents denied negligence, and, in addition, pleaded in parag­raph 12 of the defence, that the accident was due to a mechanical defect. The appellant, in his evidence, said that he estimated the speed of the taxi prior to the accident at between 50 and 60 miles an hour, and said that he asked the driver to slow down. The driver did not do this, and, after passing another vehicle the taxi “galloped” on a pothole, whereupon the driver lost control of the steering. The taxi then “reversed” on the right side of the road and collided with an oil bean tree. The driver of the other vehicle gave evi­dence and said that he was traveling at 40 miles an hour when the taxi passed him, but beyond this he could give no estimate of the speed of the taxi. This driver came on the scene a few minutes after the accident and noticed that the front of the taxi was up against a tree on the side of the road. The road was described as “fairly straight” with visibility about half a mile. There was no evidence of the type of road or as to its condition, beyond the evidence that there was the pothole referred to above.

 

The respondents elected to call no evidence in the High Court, and their Counsel submitted that negligence had not been established. Counsel for the appellant, on the other hand, submitted that there was evidence of neg­ligence and referred to Charlesworth on Negligence (Third Edition) at page 46, which relates to the maxim of res ipsa loquitur. The Judge upheld the submission that there was no evidence and dismissed the claim.

 

The plaintiff appealed to this Court and his Counsel submitted that there was evidence of negligence in the speed at which the vehicle was travel­ling, or, in the alternative, that the maxim of res ipsa loquitur applied on the ground that, without negligence, the driver of a motor vehicle does not lose control and swerve off the highway merely because his vehicle hits a pothole.

 

Counsel for the respondents, in reply, submitted that the trial Judge was right in holding that there was no evidence of any specific act of negli­gence and that the maxim of res ipsa loquitur does not apply to this case. He further submitted that the appellant cannot rely on res ipsa loquitur, as he pleaded a specific act of negligence and failed to establish it. In this respect he relied on the case of Esso Petroleum Company Ltd. v. The Southport Cor­poration (1956 A.C., 218).

 

I agree with the submission that the appellant failed to establish a specific act of negligence, namely speeding, for the reasons which are set out in the judgment of the trial Judge, and this appeal must therefore stand or fall on whether or not the maxim of res ipsa loquitur applies to the facts of this case.

 

This leads me to a consideration of the maxim which was defined by Erle, C.J., in Scott v. London and St. Katherine Docks Company (1865 16, L.T., 230) in this way:­

 

“Where the thing 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 does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

 

I think that it is well established that the maxim applies when a motor vehicle swerves off the highway, and the cases of Halliwell v. Venables(1930, 143, L.T.R., 215) and Laurie v. Raglan Building Company Ltd. (1942 1 K.B., 152) are ample authority for this proposition.

 

The issues that arise in this appeal are:­

 

(a)     Is the appellant debarred from relying on the maxim in view of the fact that he pleaded a specific act of negligence which he failed to establish; and

 

(b)     Is the prima facie case of negligence displaced by the appellant’s own evidence that the taxi ran over a pothole?

 

In dealing with the first issue, the decision in the Esso Petroleum case (supra) calls for consideration. In that case the plaintiffs alleged that the grounding of a ship by which they were injured, was the result of negligent navigation by the master; it was found by the trial Judge that the ship grounded owing to a fracture of the stern frame, which upset her steering, and not owing to negligent navigation. The House of Lords held that it was not open to the plaintiffs on the allegations at the trial to complain in the al­ternative that the very event of the fracture and grounding showed the ship to be unseaworthy. This decision would have been relevant if the respon­dents in this case had given evidence of a mechanical defect and the appel­lant had then sought to rely on the maxim of res ipsa loquitur with a view to showing that the taxi was unroadworthy; but that is not the position here. In my view there is nothing to prevent a plaintiff from pleading a specific act of negligence and res ipsa loquitur in the alternative, either in the form set out in precedent 427 in Bullen and Leake, 11th Edition, page 535, or in any other form which gives to the defendant sufficient notice of the negligence alleged and the facets from which the inference of res ipsa loquitur can be drawn. I would not describe the pleadings in this case as elegant, but, in my view, they set out with sufficient particularity the negligence alleged and the facts from which the inference of res ipsa loquitur can be drawn. In these circumstances I consider that the appellant is not debarred from relying on the maxim.

 

There remains for consideration the issue of whether the maxim is dis­placed by the appellant’s own evidence that the taxi hit a pothole. In this re­spect the case of Laurie v. Raglan Building Company Ltd. (supra) is relevant to the extent that it was held in that case that a prima facie case of negligence was not displaced by proof that the accident was due to a skid, as a skid may or may not be due to negligence. In the present case I do not think that the evidence that the taxi hit a pothole displaces the prima facie evidence of neg­ligence. It seems to me that in the ordinary course of things a vehicle driven without negligence does not swerve off the highway merely because it hits a pothole. A careful driver does not for such a reason alone lose control of his vehicle and collide with a tree on the verge of the road. In these cir­cumstances I am of the view that the maxim of res ipsa loquitur applies and that there is prima facie evidence of negligence which has not been dis­placed.

 

For the reasons given in this judgment I would set aside the judgment and order as to costs in the High court, enter judgment for the plaintiff and refer the case back to the High Court for the assessment of damages. The ap­pellant is entitled to costs in this Court which I would assess at 40 guineas. The costs in the High Court should be fixed by that Court.

 

BAIRAMIAN, F.J.:         There is an important point on pleadings raised in the arguments at the hearing of this appeal, on which I should like to give my views.

 

The plaintiff was travelling as a passenger in a taxi-car driven by the 1st defendant and belonging to the 2nd defendant; the car swerved to the right and struck a tree on the right-hand side of the road and stopped with its front part up the tree; in the accident one of the plaintiff’s legs was broken; and he sued for damages on the ground of negligence. His action was dismissed and he has appealed. His learned counsel has argued that there was evidence of speed, as the taxi, which was a Morris, was going between 50 and 60 miles as hour, compared with the 40 miles an hour or so at which the Humber Snipe was going, which they overtook shortly before the accident occurred. He has also argued that the fact of the accident by itself raised a prima facie case of negligence; that the plaintiff had no duty to prove the condition of the road, but the driver had the duty to explain why on galloping over a pothole he lost control of the steering and went off the road. He has also pointed to the de­fence of inevitable accident. Here it may be mentioned that no evidence was called for the defence; the learned Judge wrote his judgment dismissing the action upon consideration of the evidence given on behalf of the plaintiff.

 

Learned counsel for the defence said that he was closing the defence and wished to address the Court on the evidence, after the evidence for the plain­tiff was concluded.

 

Learned counsel for the defendants in this appeal has argued that the plaintiff had the duty to prove negligence. He has conceded that the speed must be taken as being between 50 and 60 miles an hour, but he has argued that the learned trial Judge was expecting the plaintiff to say that it was not safe to go at that speed, and that as the road was straight and visibility clear, speeding was not negligence. He has also argued that the plaintiff cannot rely on res ipsa loquitur because it was not pleaded, that res ipsa loquitur did not apply, and that evidence was not sufficient to raise negligence. He relied on Esso Petroleum Company Limited v. Southport Corporation, 1956, A. C., 218. In effect his argument was that res ipsa loquitur was debarred by the pleadings.

 

In reply learned counsel for the plaintiff submitted that the driver had no right to go off the road, and that was evidence of negligence. He also sub­mitted that it was enough to plead the facts, which were speeding, going off the road and landing on the tree; that res ipsa loquitur was a matter of infer­ence; that all the plaintiff has to do was to plead the facts and give evidence, from which it was to be inferred.

 

I should have mentioned that in his address in the Court below learned counsel for the plaintiff made points which indicated that he was relying on the doctrine of res ipsa loquitur, but although it appeared at one point of the judgment that it may have crossed the mind of the Judge, the judgment did not deal with it. It is mainly on that that the grounds of appeal are based. I should also have mentioned that in the defence the defendants not only de­nied negligence but also pleaded inevitable accident through some mechan­ical faults.

 

I have no doubt that a case must be decided on the pleadings. The idea behind having pleadings is to prevent either party being taken by surprise and also to achieve economy of time and expense at the trial by defining the issues and also the range of evidence which is required. I very humbly sub­scribe to all that was said by Their Lordships in the case of the Esso Pet­roleum Company. It would not be right for this Court to travel outside the pleadings. From the headnote to that case, it appears that the plaintiffs had not made any allegation of unseaworthiness; consequently the ship-owners could not be held responsible because they did not negative a possible case which was not alleged against them in the pleadings. Every allegation in the Statement of Claim was rightly decided by the trial Judge in a sense adverse to the plaintiffs, and therefore it was right that their action should have been dismissed. If the Esso case is to be applied here, it should be made to appear that every allegation made by the plaintiff was decided, and rightly decided, in a sense adverse to the plaintiff. It is desirable to look at the allegations in his Statement of Claim.

 

The relevant allegations are as follows, put briefly:­

 

Para. 10.      The driver was going too fast and the plaintiff warned the driver;

 

Para. 11.      The driver told the plaintiff he was not a novice and that he was hurrying to Port Harcourt to listen in to the news;

 

Para. 12.      The driver later overtook a much heavier car;

 

Para. 13       The plaintiff again told the driver he was going too fast compared with the heavier car they had overtaken, but the driver continued to speed.

 

Para. 14.      “About two minutes after overtaking the new car, the 1st defendant lost the control of his car.”

 

Para. 15.      “The car ran into the bush and collided with an oil-bean tree on the side of the road. The plaintiff as a result had a fracture of his left femur and sustained other injuries to his person.”

 

I cannot say that the Statement of Claim is a very elegant one. The draftsman of it would have done well if he had looked at the models in Bullen and Leake, which can be seen at page 534 onwards of the 11th Edition. Model 425 gives, in the particulars of negligence, driving at speed which was too fast in the circumstances, also failing to slow down in order to avoid col­liding with the plaintiff. Model 427 gives, amongst the particulars of negli­gence, driving too fast, also failing to slow down so as to avoid mounting the pavement and colliding with the plaintiff, and in (f) there is this particular of negligence:­

 

“So far as may be necessary, the plaintiff will rely upon the doc­trine of res ipsa loquitur (or the plaintiff will rely on the fact that the said motor lorry, which was under the control and manage­ment of the first named defendant acting as aforesaid, mounted the said pavement and there collided with him as evidence of neg­ligence).”

 

That is rather interesting because it shows that it is possible to combine an al­legation of driving too fast with an allegation of failing to slow down, and that an allegation of res ipsa loquitur may be alleged either by using the words “res ipsa loquitur” or by stating facts which amount to a case of res ipsa loquitur. I take it that if the allegation of driving too fast should fail, the plaintiff can still fall back on the allegation of the facts which amount to a case of res ipsa loquitur. And I think that the plaintiff in this case was entitled to conduct his case in the Court below along two lines – the line of excessive speed, and the line of res ipsa loquitur which was alleged; not in so may words, but by giving the facts in paragraph 15, which raised the case of res ipsa loquitur.

 

It seems to me that a passenger who was asleep at the time of an acci­dent cannot be in better case than one who was awake. If he was asleep he can plead, to put it briefly: “I was a passenger in a car driven by the defen­dant; I went to sleep; I was suddenly woken up by the shock of impact, and found that the car had struck a tree at the side of the road”; which would raise a case of res ipsa loquitur. If he was awake, he would have to plead whatever facts preceded the accident which in his opinion led to it, e.g. speeding, plus the fact that the car suddenly swerved and struck a tree on the side of the road. It does not seem right that he should lose his case because he cannot persuade the trial Court that the driver was going too fast: the Court should also consider, as it would have done in the case of the passenger who had been asleep before the accident, the fact that the car swerved and struck a tree at the side of the road.

 

It would seem that the defendants were alive to the fact that the State­ment of Claim had two strands of negligence – excessive speed and a case of res ipsa loquitur: for after denying paragraphs 10-14 of the Statement of Claim, which embodied the allegation of excessive speed, they also averred as follows in their defence:­

 

“The defendants aver that as a result of some mechanical hitch involving the right wheel cord spring and hydraulic pipe of the said car the car became thereby involved in an inevitable acci­dent. The defendants therefore disclaim any responsibility abso­lutely.”

 

And that was followed by an admission that the car ran into the bush and col­lided with an oil bean tree on the side of the road. If I am not mistaken, their paragraph 12 was intended to counter the case of res ipsa loquitur in parag­raph 15 of the Statement of Claim.

 

It is for the sake of the point on the pleadings that I have written this judgment. I think that the learned trial Judge should, in addition to consid­ering the question of speed, also have considered the question of res ipsa loquitur, which he was asked to do in the closing address of Counsel for the plaintiff. There is no need for me to say more, for I agree with what Un­sworth, F.J., has said, and with the order which he has proposed.

 

TAYLOR, F.J. (Dissenting): I have had the benefit of reading the judg­ment read by My Lord, Unsworth, F.J., and while I agree with much of what he has said I find myself unable to agree on the conclusion that he has reached, and it is only with that point that I shall deal in this judgment. It re­lates to the third ground of appeal filed and argued by learned Counsel, and it reads thus:­

 

“That the doctrine of res ipsa loquitur applied and in the absence of any evidence from the respondents the trial Judge should have found in the appellant’s favour.”

 

In dealing with this point My Lord Unsworth, F.J., has put it this way:­

 

”The issues that arise in this appeal are:­

 

(a)     Is the appellant debarred from relying on the maxim in view of the fact that he pleaded a specific act of negligence which he failed to establish; and

 

(b)     Is the prima facie case of negligence displaced by the appel­lant’s own evidence that the taxi ran over a pot hole?” Again a little lower down the judgment reads thus:­

 

“In my view there is nothing to prevent a plaintiff from pleading a specific act of negligence and res ipsa loquitur in the alternative, either in the form set out in precedent 425 in Bullen and Leake 11th edition, page 535, or in any other form which gives to the de­fendant sufficient notice of the negligence alleged and the facts from which the inference of res ipsa loquitur can be drawn.”

 

With this latter passage I agree, but where I differ is the finding of the Court that the pleadings in this case on appeal satisfy the above require­ments.

 

The first point I ask myself is: how must a party who seeks to rely on this doctrine set it up in his pleadings? In this respect I would refer to Bullen & Leake’s Precedents of pleadings, 11th edition, at page 535, under the head­ing “Claim by a pedestrian on the pavement against the driver of a motor lorry and his employers”. In the Particulars of Negligence at page 536, after setting out certain acts or omissions as (a) driving too fast and (b) failing to keep any proper look out, we find the following set out as the sixth particular of negligence:­

 

(f)      So far as may be necessary, the plaintiff will rely upon the doc­trine of res ipsa loquitur (or the plaintiff will rely on the fact that the said motor lorry, which was under the control and manage­ment of the first named defendant acting as aforesaid, mounted the said pavement and there collided with him, as evidence of negligence).

 

Before I turn to the pleadings in the appeal before us, I think it is as well to examine this pleading a little more closely. It will be seen that this plea of res ipsa loquitur is raised in one of two ways: either specifically by reciting the Latin maxim or in the alternative by making it known that the plaintiff in­tends to rely on the very collision itself as evidence of negligence. With that as a background I now turn to the pleadings in this appeal. The first material paragraph is 5 of the Statement of Claim, where the appellant avers that he is a car owner himself and has since 1952 been the holder of a driving licence. Then comes paragraph 9, where it is averred that the appellant sat in front of the said taxi next to the driver, the 1st defendant. In paragraph 10 the appel­lant pleads as follows:­

 

10. “After travelling about 5 miles from Aba on Aba/Port Harcourt Road, the plaintiff noticed that the speed at which the first defen­dant was going was very high and accordingly warned the first de­fendant whom he told that the speed was in excess of 60 miles an hour.”

 

The next paragraph deals with the reply of the 1st defendant. The fol­lowing paragraph reads thus:­

 

12. “The first defendant later overtook a new car much heavier than that of the first defendant, which was an old “Morris Minor”. Paragraphs 13 to 15 state as follows:­

 

13. “The plaintiff again told the first defendant of the excessive speed at which he was going pointing to the first defendant the fact of his overtaking a new and heavier car with much faster speed than his own. The car overtaken by the first defendant was lost in sight about a minute after. The first defendant paid no heed and continued to speed.

 

14. About 2 minutes after overtaking the new car the first defendant lost the control of his car.

 

15. The car ran into the bush and collided with an oil bean tree on the side the road. The plaintiff as a result had fracture of his left femur and sustained other injuries to his person.”

 

The relevant paragraph of the Statement of Defence in reply to the above is 12, which states that:

 

“The defendants aver that as a result of some mechanical hitch involving the right wheel cord spring and hydraulic pipe of the said car the car became thereby involved in an inevitable acci­dent. The defendants therefore disclaim any responsibility abso­lutely.”

 

The action in the High Court then went on for hearing and the appellant gave the following evidence, inter alia, after stating that the taxi was going too fast between 50 and 60 miles an hour:­

 

“Not quite three minutes after he had over taken Mr. Donald’s car the taxi galloped on a pothole and the 1st defendant lost con­trol of the steering. He reversed on the right side of the road and collided with an oil bean tree.”

 

Under cross-examination he said this:­

 

“Q.     You said there was pot hole, were it not for pot hole there would have been no accident.

 

1. There would be no accident if there was no pot hole.”

 

At the close of the case for the plaintiff the defendant did not choose to give evidence. In my view, on the pleadings as supplemented by the evi­dence, it is quite clear that the appellant never intended to, nor did he rely on the plea of res ipsa loquitur either specifically or by inference. Mention was made for the first time of this plea in Counsel’s address. The appellant pleaded that he was, in effect, an experienced motor driver himself and aver­red that 50-60 miles an hour was too fast a speed for an old Morris Minor to travel and further, that the cause, and I repeat cause, of the accident was the entry of one wheel or both wheels (the evidence is silent on this) into a pot hole.

 

With all this before the learned trial Judge, quite naturally, he did not go into the plea of res ipsa loquitur which was never raised on the pleadings. I would at this stage refer to Charlesworth on Negligence, 2nd edition, at p.36 where the learned author says this:­

 

“The doctrine of res ipsa loquitur does not apply where the plain­tiff knows the cause of the accident. `The res can only speak so as to throw the inference of fault upon the defendant in some cases where the exact cause of the accident is unexplained’. If the plaintiff tells the Court the cause of the accident, then the Court is bound to inquire whether that cause, if proved, was due to neg­ligence on the part of the defendant, and the happening of the ac­cident alone is not enough to make a prima facie case against the defendant.”

 

In Britannia Hygenic Laundry Co. v. Thornycroft, 1926, 95 L.J. K.B.237, at p.239, Bankes, L.J. said that:­

 

“I think also that this is a case in which the rule res ipsa loquitur does not apply because it seems to me only to apply where the plaintiff, in complaining, has no knowledge or means of know­ledge as to what the actual cause of an accident was, and all that he is in a position to say is that it occurred in reference to a matter of which the person of whom the plaintiff was complaining had full control and full knowledge, and the thing of which he was complaining would not have happened if the person complained of had exercised ordinary care. It seems to me that that cannot apply where the plaintiffs’ case is: ‘I know what the cause of the accident was, and I tell the jury what it was, and I say that the negligence consisted in….’ “

The judgment then goes on to state what the plaintiffs say was the cause of the accident in that particular case.

 

The learned trial Judge accepted the evidence of the appellant as to the cause of the accident and then went on the say that:­

 

“The only evidence before me is that the 1st defendant was speeding and by speeding the plaintiff meant the driver was doing 50 to 60 m.p.h. and that while he was “speeding”, the taxi gal­loped on a pot hole and the accident happened. It appears to me that the plaintiff’s case was based on the assumption that if the driver was not speeding the accident would not have happened even though, according to him (the plaintiff) it was the pot hole that caused the driver to lose control and hit the tree.”

 

In my view, if that is all that the appellant relied on to prove negligence, and the record shows no more, I cannot but agree with the trial Judge that the combination of speed – i.e. 50-60 m.p.h. not in a built-up area – and the pot hole, are insufficient to prove negligence. They are insufficient to show that the respondent did not exercise the amount of care and/or skill in the manipulation of the vehicle, the breach of which duty to take care founds the action of negligence.

 

I would accordingly dismiss the appeal with costs.

 

Appeal Allowed.