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DUFFUS, V-P;
[1] This is an appeal from the judgment of the High Court on a question of
liability in a negligence Action, resulting from an accident on the 24th
November 1965 in Nairobi along the main Limuru/Nairobi road.
[2] The admitted facts show that the plaintiff appellant was riding a
motorcycle at about 1.20 a.m.'¬
proceeding along the main road in a direction leading away from the city
centre whilst the defendant/ respondent was driving his motor oar from a
side entrance on to the main road with the intention of proceeding towards
the city centre.
[3] To do this he had to cross the white line dividing the main road into
two traffic lanes and proceed directly across the appellant's path¬ way to
get to the opposite side of the main road.
[4] It is also agreed that the respondent started to enter the main road
with this intention and that it was after he had started this maneuver that
the appellant had the accident which resulted in his being thrown from his
motorcycle ending up with his head against the respondent's car. It is
further agreed that as a result of this accident he suffered grievous and
very severe injuries. There is a dispute as to the position of and the
movements of the two vehicles just prior to the accident.
[5] The incident happened early in the morning and there was no other
traffic on the road at the time and apparently no one else saw the accident
except the two parties themselves.
[6] The learned judge accepted the defence and found that the respondent had
not been negligent and that the accident was due solely to the appellant's
negligence and accordingly he gave judgment for the respondent. The
appellant appealed to this court on some five various grounds but he also
made a preliminary application on notice of motion to be allowed to adduce
further evidence at the hearing of the appeal. He asked that a statement
alleged to have been given by the respondent to the police on the day of the
accident be admitted in evidence.
[7] This statement had also been the subject of an application at the trial,
where the appellant's advocate after both the plaintiff and the defendant's
cases had closed but before addresses or judgment, applied for the defendant
to be recalled to be cross-examined on the statement which he said had just
come into his possession. The application was opposed and was refused by the
trial judge.
[8] This refusal is the subject of one of the grounds of appeal and I will
consider this ground in due course. With regard to the application to call
further evidence on this appeal the appellant's advocate, Mr.Gautama, after
addressing us at some length, eventually abandoned and withdrew the
application.
[9] The application as it stood clearly could not have succeeded. The
application did not seek to recall the respondent or to call any witness to
put the state¬ment in but only sought to put in the statement without any
further proof. The main issue on the appeal was the question as to the
responsibility for the accident i.e. whether the accident was solely due to
the appellant's negligence, as the learned judge found, or whether the
respondent was to blame wholly or in part. This is admittedly a difficult
issue for as I have pointed out there was only the evidence of the two
parties as to the actual. Occurrence and the appellant's recollection due no
doubt to his severe injuries is hazy and the respondent’s evidence is also
uncertain.
[10] There is also a lack of any accurate measurements or other evidence as
to the position of the vehicles after the accident as the respondent had
quite understandably, in the absence of any other assistance, hurriedly
taken the appellant in his car to the hospital for treatment.
[11] The learned judge accepted the respondent's version of the evidence.
Mr. Gautama in arguing the case for the appellant also bases the appellant's
case on the respondent's evidence and he complains that the trial judge
completely misdirected himself in his findings.
[12] This is a question of fact but an appeal to this Court from the High
Court is by way of a retrial and I would here quote from the judgment of de
Lestang V-Po in the case of Selle and another v. Associated Motor Boat Com_
Ltd. and others [1968] E.A 123 C.A. at page 126 where he clearly set out the
principle on which this Court acts,
"I accept counsel for the respondent's proposition that this court is not
bound necessarily to accept the findings off act by the court below. An
appeal to this court from a trial by the High Court is by way of retrial and
the principles upon which this court acts in such an appeal are well
settled. Briefly put they are that this court must reconsider the evidence,
evaluate it itself and draw its own conclusions though it should always bear
in mind that it has neither seen nor heard the witnesses and should make due
allowance in this respect. In particular this court is not bound necessarily
to follow the trial judge's findings of fact if it appears either that he
has clearly failed on some point to take account of particular
circums¬tances or probabilities materially to estimate the evidence or if
the impression based on the demeanour of a witness is inconsistent with the
evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Sholan
(1955) 22 EACA 210 ) . "
[13] Before considering in detail the evidence before the learned judge and
his findings I would mention here that it appears from the record that the
judge, although reluctantly, did visit the locus in quo but unfortunately
there is no report of his visit on the record although this is mentioned in
his judgment.
[14] The judge does not in this case appear to have relied on any of his own
observations, but in cases where the court finds it expedient to visit a
locus in quo, the court should make a note of what took place during the
visit in its record and this note should be either agreed to by the
advocates or at least read out to them, and if a witness points out any
place or demonstrates any movement to the court, then this witness should be
recalled by the court and give evidence of what occurred.
[15] Reviewing
After the evidence the learned judge made the following findings:¬
"It is my finding that there was no collision and that the defendant's
account is for acceptance. I believe that he started to come out-thinking it
safe to do so (though he should not have decided to cross the white line and
seeing a motor cycle coming at speed (though nearer than 200 yards away) he
stopped. The manner of his stopping and the place of his stopping fixes him
with no negligence. He did not provide any emergency. Had the plaintiff been
driving at a proper speed and with a proper look - out there was no reason
why he should not comfortably have passed by or stopped. He must have
applied his brakes but it was too late when he did so and then efficiency
was in any event impaired as Mr. Barber indicates. Generally speaking,
indeed, the heads of negligence spoken to by the defendant have been made
out.
[16] It follows that the plaintiff loses." It is the appellant's case that
the respondent having come from what was at the best only an open yard on to
the main trunk road and having seen the appellant approaching, that he then
decided to cross in front of the appellant to get over to the opposite side
of the main road at a time when this was a highly dangerous manoeuvre and
that this was the main cause of the accident.
[17] A reference to the plan in evidence Ex.3 makes it clear that the
appellant was proceeding along the main road and that the respondent was
coming out of a side entrance and had to go across the road to get on to his
correct lane in order to proceed to the city centre. The appellant therefore
had the" right of way and the respondent had to exercise a high degree of
care in coming on to and going across the main road. The appellant's
advocate has referred to various passages of the respondent's evidence and
it does appear from this evidence that the respondent first come to the
entrance to the main road and there stopped, saw the appellant on his
motor-cycle at a distance which he estimated at some 200 yards away And then
decided to cross the main road and started to do so but after proceeding
only a short distance across the main road, discovered that the appellant
was then only some 40 yards away and then he stopped and the accident
occurred.
[18] The respondent’s evidence is as I have said not altogether clear and he
910es at times contradicts himself but the following extract from his
evidence supports the appellant advocate's version.
[19] I quote: ¬
"I left my children and then came to entrance Y. To the main road I stood
there and looked at Traffic on both directions. To my left I saw nothing at
all. But at a great distance, say 200 yards a motor cycle coming towards
City Park direction. At this time I was about 1 ½ feet on the road. I
stopped to allow the motor bike to pass by. He came towards the white line
in the middle of the road and yards before reaching to my car his front
wheel turned sharply to the left. The rider lost control of the motor cycle
and was thrown in the air. He fell on the road and with the momentum hit on
the right hand side of my bumper."
[20] And then further
"The motor cycle was traveling from Ngara. I had seen it from 200 yards
away. It was traveling quite fast. In relation to centre of road it was
traveling along the white line. After the accident the motor cycle was lying
on oncoming traffic side, i.e. on the motor cycle's other side, i.e.Off side
of white line in direction it was going. It was on the line that is the
wheels were on the white line. The motor cycle was on its side with wheels
on white line and the whole of it was on the on co¬ming traffic side. It was
facing towards St. Francis Xavier's Church. The 2 wheels were on the white
line and the top of the bicycle was on its wrong side. I was to go back to
Ngara. My vehicle was slightly facing to city side. Not to city side but
across the road. I was intending to go over the white line."
[21] And then in cross-examination he said: ¬
“I saw the motor cycle 200 yards from entrance Y. Its speed should be more
than 40 m.p.h. I stopped at entrance Y. I thought he was far 200 yards - I
had then already gone l ½ feet into the road then. I looked both ways, saw
the motor cycle 200 yards away and went l ½ feet into the road. When I
stopped on the road the motor cycle was approaching very fast - that is why
I had to stop. When I first saw the motor cycle it was far and I started to
cross but when it was about 40 yards away I stopped. It went 160 yards while
I went 1 ½ feet. Q. You were accused in traffic case and Mr. Vadgama Rose
appeared for you? A. Yes. Yes' I instructed him to appear for you. Q. He
said you were 2 feet on the road? A. I will accept it if you say so. I
measured nothing there. My distances are being given approximately. When I
reached Y I had stopped very long before entering into the road."
[22] From this last extract from his evidence it does appear that the
respondent is saying that he stopped first at the entrance Y where he saw a
motor cycle approaching in the distance and that he then started to cross
the road but had to stop because it would appear that he had either
misjudged the speed or the distance of the motor cycle or else that he had
himself taken too long to move across the road and that he had to stop. This
last alternative appears most probable as both the respondent himself and
the appellant stated that the respondent was moving slowly out into the
road.
[23] The position then as it appears to me from the evidence was that the
appellant was proceeding along the main road on his motor cycle at a fair.'
speed, there is no accurate evidence of his speed but having regard to
comparative lack of damage to the motor cycle this could hardly have been at
a very high or excessive speed. The motor cycle was, however, proceeding
along the main road free of any other traffic except for the respondent's
car coming out of a side entrance. The respondent's car stopped as it should
have done and at this point the appellant had the right to proceed and to
expect the respondent's car to wait until he had passed.
With respect it appears to me that the learned judge did not correctly
direct himself on this point.
I would refer hero to that portion of his judgment where he refers to the
appellant's evidence, where the appellant said:
“I saw a car coming from the left hand side of the road. It was coming on to
the main road He was coming out of a road after the school sign.”
[24] Then the learned judge commented:-¬
‘Pausing there I would make three comments ¬Whittenbury Road is a long way
back, perhaps 200 yards from the accident, the road is about 30 feet wide
and caution was called for if a vehicle was coming into the road at Y."
[25] Here clearly the judge was referring to the appellant as on his motor
cycle/being the person from whom the caution was required. I agree that some
degree of caution is needed by all drivers even if they have the right of
way on the main road but a much higher degree of caution is needed by the
driver coming out of a side road or entrance on to the main road.
[26] The learned judge however goes on to further refer to the appellant's
evidence and said:¬
"If, from so far back, the plaintiff saw that the car was of a particular
make and what it was doing then it surely should have been allowed to
proceed."
[27] In my view this does appear to be misdirection. The judge is in fact
saying that it was the duty of the driver on the main road to stop and allow
the vehicle coming out on the side road to proceed and come on to the main
road. This would be a reversal of the ordinary rule. A driver on the main
road may be negligent if he did not or could not stop in time in order to
avoid an obstacle on his path-way but a greater duty of care must lie on the
driver of the vehicle coming out on to the main road who should only do so
when he would cause no obstruction to the users of the main road.
[28] On the evidence before the court I am of the view that the learned
judge has misdirected himself on the facts and also on the law in finding
that the respondent was free of any blame for the accident.
[29] It is not clear how far in fact the respondent travelled on to the main
road. The respondent himself estimated this as 1 to 2 feet and the judge
accepted this estimate but this distance is extremely doubtful.
[30] At one stage the respondent said that motor cycle was lying on the
further side of the white line with its wheels on the white line and that
this motor cycle was about 3 feet from his car. The width of one of the
lanes of the road was 15 feet so that this estimate would put his car about
12 feet on to the road.
[31] The respondent's witness Dodhia estimated that the motor cycle was
about 10 feet from the car and this would place the car at least 5 feet into
the road. Whatever this distance may have been, it, however, clearly appears
from the evidence that the respondent was partly to blame for the accident
in coming on to the road and endeavouring to pass in front of the path-way
of the motor cycle at the time and manner in which he did and that this was
the primary cause of the appellant's manoeuvres resulting in his fall and
injuries. I would note here that the judge did find that the respondent
"should not have decided to cross the white line". I am therefore of the
view that the judge erred when he found that the respondent was not partly
to blame for the accident.
[32] I am however also of the view that on the evidence that the appellant
was also negligent. The primary cause of the accident was the respondent's
wrongful attempt to cross over the main road but the evidence does establish
that the appellant was also negligent in the control of his vehicle. The
evidence of Mr. Barber, the expert called by the respondent, showed that the
rear tyre of the motor cycle was smooth and in his opinion this caused the
motor cycle to skid out of control as the rear end would have swung to the
road and this would result in the appellant turning his front wheel to the
left to counteract this.
[33] The learned judge found that the appellant lost control of his motor
cycle which somersaulted and threw the appellant into the air and I agree
that the judge was justified in this finding.
[34] This is a case in which this court has all the evidence before it and
is in a position to and should apportion the blame between the parties. The
respondent was extremely negligence-in attempting to cross over the road in
the manner that he attempted but then the appellant was equally negligent in
riding his motor cycle with a smooth rear tyro and in his control of the
motor cycle following upon the respondent's manoeuvre.
[35] In all the circumstances I am of the view that both parties were
equally to blame for the accident and that the fairest apportionment of
blame would be 50% on each party. I would here consider the fifth ground of
appeal which is a complaint that the learned judge erred in not allowing the
respondent to be recalled for further cross-examination on the statement.
Section 146 (4) of the Evidence act gives the court the discretion in all
cases to permit the witness to be recalled for further examination in chief
or for further cross-examination.
[36] Order 17 rule 12 permits the court to, at any stage of the suit, recall
and examine any witness. In this case both the plaintiff and defendant's
case had been closed. I am of the view that the judge could have allowed the
witness to be recalled / cross¬ examination but this was a matter within his
discretion and it should only be exercised in exceptional cases where an in
Justice might otherwise result.
[37] In this case it does not appear to me that the learned judge wrongly
exercised his discretion. It does not appear from the record that any
sufficient reason was given why the statement was not available before the
close of the defendant’s case its existence seems to have been well known to
both parties and there had been a previous case in the Magistrate's Court.
[38] It docs not also appear from the record that the learned judge was
informed that the statement contained any admissions by the respondent which
might have affected the issue. I am therefore of the view that the judge was
correct in not allowing the further cross-examination and accordingly the
statement was not evidence either at the trial or on the appeal.
[39] I would accordingly allow this appeal and find that the appellant and
the respondent were both to blame for the accident and that the
responsibility for any damage arising from the accident should be
apportioned as to 50% on each party. I would accordingly quash the judgment
and decree of the high Court and send the matter back to the High Court for
the assessment of damages an1 the apportionment in accordance with the ratio
that I have set out.
[40] I would also quash the order for the costs in the High Court and order
that these costs be in the discretion of the Judge of the High Court who
completes the trial appellant the costs of this appeal.
[41] I would allow the appellant the costs of this appeal.
NEWBOLD, P;
[42] I have had the advantage of reading in draft the judgment of Duffus,
V-Po and I agree with it. A person at the side of, or near to, a main road
owes a duty of care to a user of the main road not to take such action as
would reasonably cause apprehension in the mind of that user that such
person is about to enter the main road in the circumstances which might well
result in an accident. If he fails in that duty of care and as a result
damage is caused, then he is liable at least for part of such damage.
[43] In this case I accept the finding of the trial judge that the defendant
did not travel more than about 2 feet into the road. But it is clear that
the action the defendant took was such as to lead to a reasonable fear in
the mind of the plaintiff that the defendant would cross the road in front
of him in circumstances in which if the plaintiff did not take immediate
evasive action there might well be an accident.
[44] The defendant thus failed in his duty of care to the plaintiff. This
failure was one of the direct causes of the accident .The result is that the
defendant is liable for at least a part of the damage resulting from that
accident
[45] The plaintiff also owed a duty of care to the defendant, who was the
person on or near a road, not to use on the road a vehicle in a condition
likely to give rise to an accident and was to drive the vehicle in a manner
which would result in an accident. In this case the plaintiff by using a
motor cycle whose rear tyre was in a condition likely to cause an accident
failed in his duty of care to the defendant.
[46] The fact that in taking evasive action, the plaintiff fell off his
motor cycle, something which should not normally have happened, in the
absence of any satisfactory explanation showing an absence of negligence on
his part, points ipso facto to negligence on the part of the plain tiff. It
matters not whether the fall arose from the negligence in using a motor
cycle with a tyre in that condition or from negligence in the manner in
which the motor cycle was driven, or a combination of both. This negligence
on the part of the plaintiff was almost a direct cause of the accident. Thus
the plaintiff also is liable at least in part for the damage resulting from
the accident.
[47] In the result it was the negligence of both parties which led to the
accident and I agree with Duffus, V-P in his apportionment of 50% of blame
to each party.
[48] The fifth ground of appeal attacked the decision of the trial judge
refuting to permit the defendant to be recalled for cross-examination after
the defendant's case had been closed on a statement alleged to have been
made by him. It was urged that this could have been one under Order 17, rule
12.I do not agree. That rule empowers a judge to recall a witness and put
questions to him at any stage. It is a power which should be exercised with
caution and only in exceptional circumstances where the evidence in the case
has been completed.
[49] The power given in section 146(4) of the Evidence Act to permit a
witness to be recalled for further examination and cross-examination is a
power which in a civil case should be exercised only in the most exceptional
circumstances where the evidence has been completed, and then only if the
judge is satisfied it is then that the further evidence is likely to have a
material effect on the case and that there is good reason why such further
evidence was not given in the normal way.
[50] In my view the trial judge was perfectly correct in this case in his
refusal to permit the defendant to be recalled in order that he be
questioned on a statement allegedly given by him long before the trial and
of the existence of which the plaintiff knew or should have known.
[51] Further, in order that the trial judge should be in a position properly
to exercise his discretion, the alleged statement should have been shown to
him. It does not appear that this was done.
[52] For these reasons I agree with the order proposed by Duffus, V-Po and
it is ordered accordingly.
LAW, J.A.
[53] I have read in draft the judgment s prepared by the learned
Vice-President and President.
[54] I agree with them and with the order proposed. |
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