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DE LESTANG, Ag.P.
[1] This is an appeal between joint tortfeasors against the apportionment of
blame to each of them, by the trial judge, Mosdell, J., in the High Court of
Kenya sitting in Mombasa. The facts giving rise to the appeal may be briefly
stated. At about 8 p.m. on 1st March, 1966 a Mercedes Benz motor car was
travelling from Nairobi to Mombasa on the Nairobi/ Mombasa road.
[2] At the same time a Fiat lorry with a trailer belonging to the 2nd
respondent was being driven from Mombasa to Nairobi on the same road by its
servant, the 1st respondent. There also happened to be parked on the same
road facing Nairobi a lorry belonging to the 2nd appellant under the care of
the 1st appellant its driver and servant of the 2nd appellant. It had
neither red tail lights nor rear reflectors and was parked wholly or almost
wholly on the tarmac on its proper side of the road although it could easily
have been parked on the verge of the road. As the Mercedes and the Fiat
lorry approached each other from opposite directions with their lights on
the latter vehicle pulled over to its offside in order to overtake the
parked lorry. In so doing the Fiat lorry scraped the offside of the parked
lorry and collided with the Mercedes as a result of which the lorry caught
fire and the Mercedes became a total loss. The learned judge held the
drivers of both Lorries negligent and apportioned their blame at 75% in the
case of the parked lorry and 25% in the case of the Fiat lorry.
[3] It is against the apportioning of blame to the parked lorry that the
appellants appeal. The owner of the Mercedes car, who was plaintiff in the
court below, was held to be completely blameless and is not a party to this
appeal. It is well settled that where a trial judge has apportioned
liability according to the fault of the parties his apportionment should not
be interfered with on appeal, save in exceptional cases as where there is
some error in principle or the apportionment is manifestly erroneous and an
appellate court will not consider itself free to substitute its own
apportionment for that made by the trial judge ( Brown & Or. vs. Thompson
(1968) 2 All. E.R. 708 in which the previous authorities are referred to in
particular British Fame (Owners) v. MacGregor (Owners_) (1943) 1 All.E.R.
33. ) The same principle was followed in Shariff v_ Sethna [1963] E.A. 239 a
decision of this Court.
[4] Mr. Mackie-Robertson for the appellants strongly argued that in arriving
at his apportionment in the present case the learned judge erred in that he
failed to infer from the evidence that the Fiat lorry was travelling much
faster than its driver admitted, the inadequacy of the headlights of that
vehicle 9 and the fact that if its lights had been adequate it ought to have
picked out the parked lorry in its headlights a long way away. He also
contended that the learned judge ought to have accepted the evidence of a
witness who stated that he was with the parked lorry and waved a lighted
torch at the on-coming Fiat lorry to indicate its presence on the road.
[5] Mr. M. Satchu who appeared for the respondents pointed out that not only
it was not pleaded in the particulars of negligence that the lights of the
Fiat lorry were inadequate or defective but that the un contradicted
evidence on the record was to the effect that the lights were in good
condi¬tion. He also contended that the proper speed at which the Fiat lorry
was travelling was borne out by the uncontradicted evidence of an expert
witness and that the driver of the Fiat lorry was unable to pick out the
parked lorry because, as he said, he was dazzled by the lights of the
on-coming Mercedes.
[6] The learned trial judge made no express finding on the speed at which
the Fiat lorry was travelling nor on the condition of its lights but reading
his judgment as a whole he seems to have been satisfied on both these
matters as he accepted the version of the accident given by its driver.
[7] It seems to me also that the learned judge cannot be criticised for not
accepting the evidence of the witness about the waving of a torch for the
reasons he gave and in view of the evidence of the driver of the Fiat lorry,
which he accepted, that the parked lorry was unattended at the time and its
driver only arrived on the scene fifteen minutes later whereas the witness
had said that he was sitting in the cab.
[8] I am not convinced that the learned judge in the present case failed to
give effect to some material fact or to take into account some material
consideration in which case only would it be right for this Court to
intervene.
[9] It may well be that had I been trying this case I might have apportioned
the blame slightly differently but this is no good reason to interfere with
the assessment made by the learned judge.
[10] I would accordingly dismiss this appeal with costs and as Duffus, Ag.
V-P., and Spry, J.A. also agree it is so ordered.
DUFFUS AG. V -P.
[11] I agree.
SPRY, J.A.
[12] I also agree. |
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