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14 WACA 608
DE COMARMOND, AG. C.J. NIGERIA
COUSSEY, J.A., AND STUART, J.
TORT AND PERSONAL INJURIES:- Fatal Accidents Act, 1846, section 4 – Claim of damages by dependants – How treated
TORT AND PERSONAL INJURIES:- Negligence – Defence of inevitable accident – Onus on defendant – relevant considerations
CHILDREN AND WOMEN LAW:- Fatal accidents – death of mother from motor accident related injuries – two other women as passengers/eye-witnesses in lorry which overturned after driver lost control – how treated
MOTOR VEHICLE AND TRANSPORT LAW: Negligence in the driving of a lorry down a steep and hilly incline – how proved – when defence assumes the burden of proving unavoidable accident – when a driver may be deemed not to have shown reasonable skill and care in negotiating a peculiar terrain – not changing gear when the lorry had already gathered speed in its descent – duty of a prudent man in charge of a machine which could become an instrument of death at the crest of a long, steep and winding hill the dangerous nature of which he was aware – claim that both handbrake and other brake system failed without showing interconnectedness of both – need for defendant asserting unavoidable accident to show that he took the precautions of a reasonable prudent man responsible for the safety of several passengers, and that mechanical defect alleged were indeed factual
PRACTICE AND PROCEDURE:– Appeals in Civil Cases-Findings based on inadequate view of evidence – duty of appellate court thereto
The following judgment was delivered:
This is an appeal from a judgment of the Supreme Court of the Benin Judicial Division dismissing an action in which the plaintiffs claimed damages for the death of the mother of the first and second plaintiffs, who was also the daughter of the third plaintiff, from injuries sustained while a passenger in a motor vehicle by the negligence of the second defendant, who was the servant of the first defendant, the owner of the vehicle.
Mr. Kayode argued the appeal on behalf of the plaintiffs-appellants. The defendants were unrepresented in the Appeal Court.
Ground 1 is that the learned trial judge erred in law in holding that section 4 of the Fatal Accidents Act, 1846 (Lord Campbell’s Act), had not been complied with.
The passage referred to in the judgment is as follows:
“ The first ground on which the claim must fait is non-compliance with section 4 of the Act under which the action is brought. Section 4 of the Act requires that in any action brought under it the plaintiff should deliver with his pleading or state in his statement of claim inter alia the nature of the claim in respect of which damages is sought to be recovered.”
In my opinion this provision was sufficiently complied with by the plaintiffs in their writ and statement of claim, which set out that damages are claimed as pecuniary loss as dependants of the deceased.
The defendants, if so advised, may apply for better particulars of the basis of damages.
As to the other grounds of appeal the facts are that the deceased woman was a passenger in a lorry which was in the charge of the second defendant as driver thereof. When descending a hill on the Ikare-Owo road on the morning of the 13th June, 1951, the second defendant lost control, the vehicle gathered speed on the incline and rounding a bend overturned, and the deceased was found to be dead when the loads in the lorry were removed.
The defence was inevitable accident and that there was no negligence on the part of the second defendant.
In the view of the learned trial judge the plaintiffs failed on this aspect of the case, firstly, because two women passengers, witnesses for the plaintiffs, failed to prove that the second defendant drove at an unreasonable speed and secondly, because he accepted the evidence of the driver that the accident was due to loss of control of the lorry caused by a sudden failure of the brakes when he was descending a long steep and winding hill, that the momentum gathered by the vehicle in the tortuous descent made it unsafe to take his hand from the steering wheel to attempt to change gear as a means of reducing speed, and that his failure to do so was therefore not evidence of want of reasonable care and skill. He further held that as the brakes had been tested by a government motor examiner about a week before the incident, the defect in the brake system could not have been revealed by reasonable care.
In an action of this nature, where a thing is shown to be under the management of the defendant or his agent, and where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself, if it happens, raises a presumption of negligence in the absence of any explanation. Res ipsa loquitur. Byrne v. Boadle (1), Scott v. London Dock Co. (2), Kearney v. London & Brighton Rly. Co. (3).
The defendant sought to get rid of this presumption by showing that the accident was inevitable, i.e. that it was due to a cause not produced by him but by a cause which he could not avoid. In my opinion the second defendant did not discharge the onus which lay upon him.
The speed of the lorry on sections of the road earlier that morning is irrelevant.
The question is what skill and care did the defendant employ from the moment the lorry reached the top and started the descent of this dangerous hill. The second defendant said in evidence that he had been driving for about seven years and he was very familiar with the Lokoja-Owo road having travelled on it often. His material evidence is as follows:
“ About two miles out of Ikare when I got to Okesigba hill I put my foot on the brake when going down the hill so as to keep the lorry under control because the hill is steep, long and winding. Whilst going down the brake suddenly failed to act. When the brake failed to act the lorry gathered speed down the winding hill. The winding nature of the hill made it necessary for me to keep the lorry under control so I could not take any of my hands off to do anything else and the lorry ran off into a ditch because the speed and winding nature of the hill made it impossible for me to keep proper control of the lorry.”
In cross-examination he said:
“ From the top of the hill to the bottom is about a mile long. I do not know what caused the brakes to fail. The hand-brake also failed.”
It may be, as the learned judge observed, that in not changing gear when the lorry had already gathered speed in its descent the second defendant did not show want of reasonable skill and care. But what was the duty of a prudent man in charge of a machine which could become an instrument of death at the crest of a long, steep and winding hill the dangerous nature of which he was aware? It was for pause or slow down before the descent and as a cautionary step to change into a low gear in order not to rely only upon the brakes of the vehicle. In failing to adopt this course, the second defendant in my view failed to take the precaution of a reasonable prudent man. Further, there is no evidence that he attempted to apply the hand-brake. It emerged for the first time at the end of his cross-examination that the hand-brake had also failed on the hill, a strange coincidence since the hand-brake was not proved to be connected with the same system as the other brakes of the vehicle.
Further, that the brakes failed to act rests upon the bare statement of the second defendant. It is not proved that the vehicle was so totally destroyed that it could not be examined after the accident to ascertain the precise cause of the failure of the brakes, if they in fact failed, at the crucial moment; and so we are left with a defence in which the second defendant has failed to establish that he took the precautions of a reasonable prudent man responsible for the safety of several passengers, and the mechanical defect alleged has not been proved so as to show inevitable accident. The fact that the brakes had been tested a week earlier does not assist the defence. It does not establish the defence of unavoidable accident. See The Merchant Prince (4). I would, therefore, allow the appeal but as the learned trial Judge has not made a finding as to how far the plaintiffs were dependent upon the deceased nor indicated what he would have awarded as damages if he had found in favour of the plaintiffs or some of them, the case must be remitted to the Court below for these issues to be determined, issues which will require careful consideration upon satisfactory evidence.
The appeal is accordingly allowed, the judgment of the Court below is set aside, and the action remitted to the Court below for the purposes stated.
DE COMARMOND, Ag. C.J.
Appeal allowed; case remitted for certain purposes.