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21ST MARCH, 1973

SUIT NO. SC 332/1970

3PLR/1973/27 (SC)



(1973) All N.L.R 181

(1973) 3 S.C. 53


BEFORE THEIR LORDSHIPS                                   






Tort –Contributory negligence – Claim for damages for personal injuries – Res ipsa loquitur -Application -Erroneous.



Mr. Kehinde Sofola for the Appellant.

Mr. I.A Olorunnimbe for the Respondent.


COKER. J.S.C. (Delivering the Judgment of the Court): This appeal is from the Judgment of Adebiyi, J., High Court, Lagos, in an action instituted by the respondent, as plaintiff, against the appellant who was the defendant in the High Court. In the action, the plaintiff had claimed against the defendant damages “for personal injuries cause by negligent driving of the defendant of a motor vehicle No MS 248 on the 25th day of March, 1967, at Apapa Wharf in Lagos.” The plaintiff also endorsed on the writ the particulars of the negligence of the defendant on which he would rely at the trial as follows:


“PARTICULARS OF NEGLIGENCE The defendant was negligent in that he –


  1. Failed to keep proper or any look out or to observe or heed the presence or approach of the plaintiff.


  1. Drove at a speed which was too fast in the circumstance.


  1. Failed to stop, to slow down or to swerve or in any other way so as to manage or control the said vehicle MS 248 so as to avoid hitting plaintiff’s Solex cycle.


  1. Collided with the right side of the plaintiff’s Solex cycle to the extent of which and so far as may be necessary the plaintiff will rely upon the doctrine of res ipsa loquitur.”


Both parties filed their pleading and as stated in his statement of claim, the plaintiff’s case was that on the 25th March, 1967, as he rode his autocyle, No. LD 1387, along a road in the Apapa Wharf, the defendant, diving his motor car no MS 248, suddenly emerged and hit him and his autocycle on the right side causing him extensive injuries and his auto-cycle damage of a very serious nature. On the other had, by his statement of defence, the defendant denies any negligence in himself or indeed any liability for damages and stated that the sole cause of the accident was the negligence of the plaintiff himself. Paragraphs 5 and 6 of the statement of defence told the whole story of the defendant and are as follows:


“5.     The defendant states that on 25th March, 1967 at about 11.10 a.m. while he was carefully, slowly and skillfully driving his car No. MS 248 along one of the major road running the length of Apapa Wharf and on approaching the entrance to a small minor road bisecting stacking area Nos. 9 and 10, the plaintiff suddenly and without warning negligently dashed with his Solex Auto Cycle from the said minor road across the said major road and so cause the accident.


  1. That as a result of the matter referred to in paragraph 5 thereof, the defendant took necessary avoiding action as he reasonably could in the circumstances but the accident could not be avoided as there was insufficient separation of the time, place and space of doing so.”


At the trial, both parties gave evidence and called witnesses to support their stories. The learned trial Judge in the course of his judgment observed as follows with respect to the conflict in the evidence:


“1 do not believe the story of the plaintiff and his witness that he had completed crossing the road and was on his right side of the road proceeding in an opposite direction from that in which the defendant was travelling when the accident occurred. I prefer the evidence of the defendant as to how the accident happened to that of the plaintiff. I find that the accident took place when the plaintiff, having misjudged the nearness of the approaching car, tried to go on to the major road from the Intersection road. I think the defendant’s description of what happened after he had suddenly seen the plaintiff in his path was essentially true. There was no evidence on the plaintiffs pan of the speed at which the defendant was travelling down this wet and slippery road and I am left with the defendant’s estimate of his speed at between 15 and 20 miles per hour. The witness Kehinde did appear stupid but 1 think he was essentially a witness of truth and he said the speedometer, which he was watching registered 18 miles per hour.”


Strangely enough, after this positive and crucial finding, the learned trial Judge then proceeded to deal with the defendant’s case again as if re-hearing ft. He referred to the stacking which the parties agreed existed on the right-hand side of the road in the direction of the defendant and with regard to this observed as follows:


“I think the stacking described- by the defendant made the possibility of danger apparent and the defendant ought to have taken some precaution and 1 did not hear of any. See e.g., Lang v. London Transport Executive (1959) 1 W.L.R. 1159. It was only after he saw the plaintiff in his path that he swerved and went on his brakes.”


He then concluded his judgment as follows:


“In the circumstances I find that the defendant was negligent although I think that the plaintiff was far more to blame and that his share of responsibility and culpability far greater. I find the plaintiff two-thirds to blame and defendant driver one-third to blame.”


Eventually, he awarded the plaintiff total damages amounting to £500 (or N1,000) on the basis of one third of the total amount found due by him to the plaintiff, namely £1,500 or N3,000 and on the ground that he held the defendant contributorily negligent and one-third liable for the accident.


The defendant has now appealed to this court against that Judgment and his main complaint is that the learned trial Judge was in error of law in holding him, that is the defendant, contributorily negligent in view of his own dear findings that the plaintiffs negligence was the cause d the accident Learned counsel for the plaintiff argued that the findings of fact should not be disturbed by this court and that the learned trial Judge rightly found as a fact that the negligence of the defendant contributed to the accident


The matter to be decided on appeal is of a considerably small ambit but undoubtedly ft concerns one of the most important principles of the law of negligence viz: that d contributory negligence. There is no dispute that the learned trial Judge had earlier on in his judgment stated that he believed and accepted the story of the defendant and disbelieved that of the plaintiff and his witnesses. This means without doubt that the story accepted by the learned trial Judge is to the effect that whilst the defendant was driving his motor vehicle along a main road on the day and time in question, the plaintiff negligently riding his autocycle emerged into the road and ran into and was hit by the motor vehicle of the defendant This finding involves that the plaintiff was all the way at fault and that as the defendant told the court, he was not negligent at all in the way he operated his motor car at the time of the accident. In concluding that the defendant should share the blame, the learned trial Judge referred to the case of Lang v. London Transport Executive (1959) 1 W.LR.1 159. it is easy to see that In that case the defendant was blamed all the way for the accident but the plaintiff shared the blame on account of his own negligence which was held to have contributed to the accident. It is obvious to us that, in the present case, to saddle the defendant with contributory negligence is to apply a mistaken view of the law to the facts as found and dearly expressed by the learned trial Judge. Contributory negligence means that the party charged is primarily liable but that the party charging him has “contributed” by his own negligence to what had eventually happened. In Butterfield v. Forrester (1809) 11 East 60, at p.1116, Ellenborough, C.J. described the principle of contributory negligence in clear and simple language as follows:


“A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right…. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”


Since 1909 the principles of contributory negligence have recognised many modifications but the essential characteristic remain the same, i.e. the party charged must be primarily liable for the negligence that cause the damage or injury. Thus, section 1 of the Law Reform (Contributory Negligence) Act, 1945 (8 and 9 Geo. 6 c.28) defines contributory negligence as follows:


“1(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damages….”


In the case in hand, the learned trial Judge having found that the plaintiff was at blame for the accident and injuries to himself, had thereafter sought to make the defendant a contributory to the fault of the plaintiff. This course obviously fails to take account of the onus of proof in the case for the onus of proving contributory negligence is always on the defendant. See Hicks v. British Transport Commission (1958) 1 W.LR. 493. In Stapley v. Gypsum Mines Ltd (1953) A.C. 663, the Privy council extensively considered the principles on which the doctrine of contributory negligence is founded. They are indeed principles based upon the application of common sense to the simple fact of life-facts which reveal the action of a person who although he was not primarily responsible for an accident had, by his own conduct, created a situation which favoured a cause of the accident which had occurred. In Stapley’s case, Lord Asquith admirably summarised these principles thus at p.687 of the Reports:


“Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge ….. The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not there would be no question of apportionment, but the fission between law and strict logic goes deeper than that. For I am persuaded that it is still part of the law of this country that two causes may both be necessary preconditions of a particular result – damage to X – yet the one may, M the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a cause sine qua none and ignored for purposes of legal liability….. On the contrary, the words “as the result of in section 1 of that statute impliedly reserve the doctrine, the assertion of which your Lordships have more than once coupled with an admonition that, if the conditions for its application occur, a Judge sitting alone should assume the mantle and the mentality of a jury, and should take what is called a “broad common-sense view” in deciding whether one of the causes (there may be two or twenty) is the “real” cause.”


Concerning the case in hand, we are satisfied that having found that the plaintiff was primarily liable in negligence for the accident, the learned trial Judge was wrong in his conclusions that the defendant was to share in the blame. In such circumstances, a court of appeal is entitled to and must indeed intervene so as to disturb the findings of fact or the wrong Inferences which are the subject-matter of the appeal before ft. In this case, a manifest error has been shown to exist on the application of the principles of contributory negligence. The findings of the learned trial Judge and the conduct and action of the plaintiff, left no room whatsoever for his subsequent findings of contributory negligence on the part of the defendant and it Is clearly not logical to hold the defendant to blame at all in the circumstances of this case. This certainly is our own conclusion on the basis of the facts as found by the learned trial Judge himself, and we therefore set the judgment aside.


The appeal must and it does succeed. It is allowed and the judgment of the High Court, Lagos, in Suit No. LD/2/68, including the order for costs, is set aside. We order that the plaintiff’s case be dismissed and this shall be the judgment of the Court. We also order that the plaintiff shall pay the cost of the defendant fixed in the Court below at N200 and in this Court at N118.


Appeal allowed.



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