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MUSTAFA, J.A.
[1] On 6th July 1968 in Jogoo, Road, Nairobi, a bus driven by one of the
appellant's employees collided with one Malanda as a result of which Malanda
died. Malanda's widow, the respondent herein, filed an action for herself
and on behalf of her three children as dependants under the Fatal Accidents
Act.The learned judge found that the appellant's driver was wholly to blame
for the accident and awarded the respondent damages totaling shs 37,160/-.
The appellant now appeals.
[2] The evidence adduced by the respondent's witnesses was as follows:Pw3, a
friend of the deceased, testified that on the material day he and the
deceased were standing on one side of Jogoo Road and were talking with each
other. The deceased then left him to cross the road.
[3] At that time two buses one behind the other, were coming towards where
they were. The bus which was behind was overtaking the bus in front at a
high speed. The deceased had already crossed the road and had one foot on
the pavement on the other side when the overtaking bus hit the deceased
killing him. P.W.3 was positive that the deceased was behaving and talking
normally and did not smell of drink at all.
[4] He also said that he told a policeman, D.W.5 Inspector Kamau, that he
saw the collision. He said that he went to the police station but nobody
recorded his statement. P.W.4, a brother of the deceased, alleged that he
also saw the accident and gave evidence to the same effect as PW3.PW4 stated
that the deceased never drank and had not been drinking on the day of the
accident. He made a statement to D.W.5, Inspector Kamau two days after the
accident. In the statement he said that he was walking on Jogoo Read he
heard people saying that there was an accident and when he proceeded to the
spot of the accident he found his brother, the deceased, who was lying dead
on the ground.
[5] P.W.5, a relative of the deceased, also alleged that he said the
accident and testified to the same effect as P.W.3 and P.w.4. P.w.5 had also
made a statement to Dw5 Inspector Kamau on 8th July 1968, two days after the
accident, in which he said that as he was walking along Jogoo Roe4 on the
material day he saw a gathering of people. He went up to the group of people
and then saw the deceased lying under a bus.
[6] Both P.W.4 and Pw5 testified in court that in their statements to D.W.5
Inspector Kamau they had said that they actually saw the collision taking
place and that the police officer must have omitted or misrecorded what they
said. The bus driver D.W2 testified that he was driving his bus along Jogoo
Road on the material day. He said the accident took place near Nyasa Road.
At the time of the accident there was no other bus on the road.He had
stopped at a bus stop and was then proceeding to another bus stop nearby.
[7] He was driving at 28 to 30 miles per hour. He saw a person crossing the
road in front of him and he applied his brakes. The person then stopped. He
swerved to his right and the person tried to cross the road again. Then DW2
swerved to his left and the person staggered backwards. DW2 then swerved to
his extreme right and the person ran cross the road and collided with the
bus. D.W.2 stopped his bus and found the person lying under the bus behind
the loft front wheel which would run over him. D.W.2 said that the person
was walking in a zigzag manner like a drunken man. D.W.2 however was
somewhat confusing as to the drunken state of the person, as at some stage
in his cross-examination he said that he decided that the deceased was drunk
after he had got out of the bus and could smell alcohol coming from the
deceased from underneath the bus.
[8] D.W.1 Dr. Ribeiro performed a post-mortem on the deceased and said that
there was a very powerful alcoholic smell from the deceased's stomach when
it was opened. He took blood and urine samples for alcoholic analysis and
the result stated that blood alcohol figures indicated a minimum intake of 9
½ pints of beer or 18 whiskies.
[9] There were 345 mg. He said that at 300mg. everyone is drunk. A person in
the condition of the deceased could have walked automatically along a road.
If the deceased was a teetotaler and had 18 whiskies circulating in his
blood he would have been lying on the floor.
[10] DW5 Inspector Kamau visited the scene of the accident shortly after it
had occurred and looked for and found two witnesses at the scene. They wore
P.W.4 and P.W.5. He recorded their statements two days later at the police
station. He produced the statements and said that they were read back to
both. PW4 and PW5 who agreed that they were correct and signed them. He only
remembered these two witnesses. He did not see Pw3 at the scene or tell him
to call at the police office to record his statement.
[11] On the evidence I think it is clear that the collision took place on
the wrong side of the road in so far as the bus was concerned, that the
deceased was very intoxicated when he collided with the bus, and that DW5
Inspector Kamau correctly recorded the statements of PW 4 and PW5. The judge
in his judgment said:¬
"If I may use a gruesome word, the killing is admitted as a result of a
collision between the bus and the deceased but negligence is denied.
Liability is also denied. res ipsa loquitur.”
[12] The learned judge then held that there was a presumption of negligence
on the part of the bus driver arising from the fact of the collision. He
found, on an analysis of the defence evidence; that the bus driver had
failed to satisfy the court that he was not negligent. With respect, on the
evidence adduced, the principle of res ipsa loquitur cannot apply. It is not
one of those cases where it is clear that but for the negligence of the bus
driver the accident could not have happened and that the deceased is totally
blameless.
[13] It is obvious that the deceased was very drunk, had probably lurched
across the road in the face of an on-coming bus and possibly had staggered
back and forth while crossing the road.
[14] In such circumstances the negligence on the part of the deceased could
hive contributed to the collision. Mr. Kapila sought to support the judge's
finding that res ipsa loquitar applied on the authority of Cambay Trading
Company v. Lewin (1943) 10 EACA 36. In my view the facts in that case are
indistinguishable. There a car was being driven along on its correct side of
the road and met anon-coming lorry in the opposite direction.
[15] There was plenty of room for the vehicles to pass each other. Suddenly
the lorry came right across to its wrong side of the road directly in the
front of the car and collided with it. The lorry driver did not give
evidence and there was no explanation of how the lorry came to its wrong
side of the road. As no explanation was given as to how the lorry in such
circumstances could have got across in front of the car, it was held that
the principle applied.
[16] Here a reasonable explanation was given and the bus driver testified as
to how he tried to avoid the deceased who staggered back and forth across
the road. ¬ In connection with this doctrine I need only refer to
Bikwatirizo v. Railways Corporation [1971] E.A. 82 where Spry, Ag. P. said:¬
"The application of the doctrine was very clearly set out by SCRUTTON, L.J.
in Britannia Hygienic Laundry Co. v Thornycroft & Co. when he said (1925) 95
L.J.K.B. 237):
The doctrine of res ipsa loquitur, as understand it, is this where you have
a subject matter entirely under the control of one party and something
happens while it is under the control of that party, which could not in the
ordinary course of things happen without negligence you may presume
negligence from the mere fact that it happens."
[17] Fortunately the learned trial judge also said: ¬
"It may be decided that the principle of res ipsa loquitur does not apply in
this case."
[18] He then went on to consider the evidence adduced by both the parties.
In respect of PW4 and PW5 the learned judge said:¬
"The statements made to the police by two of them and which have been
produced do not necessarily prove that they are liars"
[19] With respect, I am unable to agree. P.W.4 and P.W.5 in their statements
said that they came to the scene of the accident and saw the dece3sed lying
on the road after the collision had happened.
[20] In court, bout 3 years later they alleged that they actually saw the
accident, and give practically identical accounts of how the accident
occurred.
[21] The learned judge also said:¬
"The amount of alcohol found in the deceased's body has left me mystified."
[22] In my view it is crystal clear that the deceased was very intoxicated
and his state of intoxication could perhaps confirm the evidence of the bus
driver about the deceased's unusual and dangerous behaviour on the road. PW3
had said that just prior to the accident the deceased did not smell of
drink.P.W.3 was clearly untruthful. Indeed the evidence of PW3 tallied in
such minute details with that of P.W.4 and PW5 that it must be suspect.
[23] I appreciate that I do not have the advantage of seeing or hearing the
witnesses as the learned judge had, but on the evidence of the doctor as to
the state of intoxication of the deceased and the evidence of the police
inspector of the statements recorded by him from P.1.4 and P.W.5, factors
which the learned judge somehow ignored or did not adequately deal with. I
am satisfied that the Learned judge was in error in finding that the bus
driver was solely to blame for the collision. I am of the opinion that the
deceased was partly responsible for the collision and that he was to some
extent negligent.In my opinion the bus driver was negligent. On his own
evidence he was perhaps not keeping a proper look out and he was certainly
driving too fast between the two bus stops.
[24] Indeed Mr. Guram for the appellant conceded that the bus driver was
negligent. However, en the evidence it is difficult to say who was the more
negligent, the bus driver or the deceased. I am however, satisfied that both
were negligent. In the circumstances I think the fairest way would be for me
to apportion the blame equally between them.
[25] I therefore find that the deceased and the bus driver were equally
negligent. I would allow the appeal and reduce the amount of damages awarded
to which was not appealed, to half, that is to Shs 18,580/-. I would leave
the apportionment between the widow and the children undisturbed.
[26] I would also leave undisturbed the order for costs and interest in the
High Court.
[27] I would allow the appellant half the costs of the appeal.
LAW, JA
[28] I have had the advantage of reading the judgment prepared by Mustafa,
J.A. with which I am in full agreement. As however we are differing to some
extent from the judge below, I will make a few observations of my own, As
regards the application of res ipsa loquitur to road accidents, it is my
opinion that no presumption of negligence arises against any person involved
in a collision between moving vehicles, or between a moving vehicle and a
pedestrian, when actually on a highway.
[29] Such cases should be tried in the light of the allegations of
negligence raised by the parties. The position may be different when a
vehicle leaves the highway, or is on a part of the highway where it has no
business to be and no explanation is put forward at any time by the driver,
which was not the case here. The other matter I must refer to is the
unchallenged evidence given by the police pathologist, to the effect that
the deceased had absorbed the equivalent of 18 whiskies. In the case of a
person unused to drinking - as the deceased allegedly was - this would
involve, in the words of the pathologist, "lying on the floor".
[30] The only consideration given by the learned trial judge to this
evidence was his remark that it left him satisfied. With respect, the
rele¬vance of this evidence goes much further than that. It lends support to
the bus-driver's evidence that the deceased "as crossing the road in an
erratic and unsafe manner, staggering back and walking in a zigzag manner,
then suddenly running forward when the bus-driver tried to avoid him by
passing in front of him.
[31] The pathologist's evidence also casts grave doubt as to the truth of
the evidence of the alleged eye-witnesses, especially PW3, who deposed that
he spoke to the deceased immediately before the accident, and that he then
looked normally, spoke normally, did not smell of liquor, and was walking
normally .In my view, on a proper direction on the evidence as a whole, the
inference is inseparable that the deceased crossed the road in a grossly
negligent manner, due to his highly intoxicated condition. At the same time
I agree with the learned judge that the bus-driver's standard of driving in
the circumstances fell short of the required standards.
[32] I would allow this appeal to the extent indicated by Mustafa, J.A. and
as Lutta, J.A. also agrees there will be an order in the terms proposed by
Mustafa, J.A.
LUTTA, JA.
[33] I agree. |
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