9 May 1972

     
 

Criminal Appeal No. 57 of 1971

 
     

Court of Appeal for East Africa

     
     

K. Eriya and K. Sajabi

 

v.

Kevina Kiwanuka and John S. K. Namuego

     
     
 

Judgment

 
     
 

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BEFORE:

VICE-PRESIDENT: Spry
JUDGES OF APPEAL: Law and Lutta

   

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Citation:

Eriya v. Kiwanuka, Judgment, File No. 57 of 1971 (CAEA, May 09, 1972)

Represented By:

 

Editor's Note:

Appeal from a decree of the High Court of Uganda at Kampala (Saldanha, J.)dated 13th September, 1971 in Civil Case No. 633 of 1969

 
     
 
 
 

JUDGMENT OF SPRY, V-P

[1] This appeal arises out of an accident in which a Peugeot taxi was in collision with a lorry. A passenger in the taxi was killed and his widow, now the first respondent, sued the owners of the two vehicles, claiming damages on her own behalf and on behalf of the other dependants of the deceased. The learned trial judge found that the drivers of both vehicles had been guilty of negligence and he apportioned liability as to 25% against the owner of the taxi, now the second respondent, and as to 75% against the owner of the lorry, now the appellant. There was an extraordinary lack of evidence. The only witness as to the circumstances of the accident was the driver of the taxi and there were also put in evidence, by consent, a sketch plan prepared by the police and a police abstract of particulars.

[2] The driver said that he had just rounded a bend and was on a straight road. The surface was tarmac. It was about 9 p.m. and he had his headlights on. These gave him a range of vision of about 80 yards. His speed was about 50 miles per hour. He came suddenly on thick smoke, allover the road. He dimmed his lights and then put them on full again. He applied his brakes, but before they wore fully effective he saw "something that looked like a wall very near me, in the middle of the road." He attempted to swerve to the right but struck what turned out to be the lorry.The driver said that he only saw the smoke at a distance of 10 feet, because he had only just rounded the bend. It was then that he began braking.

[3] He first saw the lorry at a distance of 30 feet. At that time, his speed was about 40 miles per hour. The sketch plan does not add a great deal to this, except that it shows the lorry as having been more or loss on the near side of the road before the accident. After the accident, according to the plan, the taxi was in the middle of the road, and the lorry completely off it, on the near side. The taxi had left skid marks about 55 feet long. The plan does not show the bend in the road. For reasons into which it is unnecessary to go, the learned judge rejected a large part of the driver's evidence. He held that the lorry was stationary, with its engine switched off, unlit and unattended. Although he did not expressly say so, by implication he clearly held that there was no smoke. There has been no appeal against these findings of fact and it is on that basis that this appeal must be decided.

[4] The learned judge first considered whether the driver of the lorry had boon negligent and said

"Leaving an unlit lorry on the road at night is clearly evidence of negligence." I would agree and I think that in the absence of any reasonable explanation, the inference of negligence is irresistible.

[5] The learned judge then considered whether the driver of the taxi had bean negligent and held that he had, on the basis that his speed, though not dangerous in itself, showed negligence having regard to the bend in the road. The difficulty here is that there is no evidence whether the bend was a gentle curve or a hairpin bend.

[6] The learned judge then went on to find that even if the evidence of the driver of the taxi were true he would still have been guilty of negligence. He said:

"The probability is that he was coming out of the bend so fast that by the time he saw the lorry it was too late to avoid a collision, smoke or no smoke.”

[7] In my view, with respect, this was a very unfortunate passage. Having made certain findings of fact, he seems, in relation to the taxi driver's negligence, to re-open the question.He then considered two cases, Karisa v. Solanki [1969] E.A. 318 and Thyssen v. Wakisu Estate Ltd.[1960] E.A. 288 and went on to say that “On the authority of these two cases" he found the taxi driver 25% to blame and the owner of the lorry 75% to blame. The first two grounds of appeal were that the learned judge had erred in holding the appellant liable in negligence and, alternatively, that he had erred in his apportionment of liability. With respect, I can see no merit in the first ground of appeal. It may be that there was no negligence, but the appellant chose to call no evidence. He offered no explanation why the lorry had stopped where it did or why it was unlit at night. He did not seek even to prove that the lorry had the reflecting chevrons required by law.

[8] The second ground of appeal, however, raises very serious issues. AS I have said, the learned judge, in considering the question of negligence, appears to have taken into account evidence which he had already rejected.

[9] Secondly, Mr. Kateera, who appeared for the appellant, argued strongly that in saying that his apportionment was "On the authority" of the two oases to which he had referred, the learned judge was extracting from them a principle that where a car runs into a stationary unlit lorry by night, substantially the greater liability is with the owner of the lorry.

[10] I am quite sure that had such a proposition been put in that form to the learned judge, he would have rejected it, but it is difficult to exclude the possibility that he was unconsciously influenced by some such idea, particularly as the facts of those facts of those cases are materially different. Every case must be decided on its own facts, bearing in mind that the test is not which party was more negligent, but which party by his negligence contributed more to the accident.

[11] Where a lorry is left unlit on a road by night, the factors to be considered include whether or not the road is straight; whether it would have been possible to draw off the road, how close to the verge the lorry is parked and how much room it leaves for passing; the colour of the lorry and whether it has effective chevrons; the volume of traffic which the road carries and, of course, the reason for stopping.

[12] So far as the present case is concerned, we know that the road was 22 feet _wide and that it was straight, although the spot where the accident happened was not far from a bend.

[13] The abstract of particulars shows that the weather was clear, the road surface dry and in good condition and the traffic light. The sketch plan indicates that the ground drops away on either side of the road.

[14] As I have said, the learned judge found that the lorry was stationary, on its near side of the road. The abstract of particulars states that according to the inspector of vehicles, the lorry was not D.M.C. before the accident - we take this to mean that it was not in a defective mechanical condition. So far as the other vehicle is concerned, the weather, road and traffic conditions are again relevant, as is the condition of the vehicle and its driver and the speed at which and the manner in which it was being driven.

[15] So far as the present case is concerned, I have already dealt with weather, road and traffic conditions, except that it is important to note that the driver never claimed that there was any oncoming vehicle. The taxi, like the lorry, was reported by the inspector of vehicles as not having been D.M.C. before the accident. There is no evidence as to the manner in which it was being driven. As regards speed, the driver said that he came out of the bend at 50 miles per hour without actually rejecting that evidence, the learned judge suggested that the actual speed was probably higher.

[16] It seems to me that the essential fact of which we are ignorant is the distance between the end of the bend and the point of impact. I do not see how the learned judge could apportion the blame without first making a finding on this. If the distance was very small, the driver of the taxi might, as the learned judge said, have found it impossible to avoid a collision. If it were greater, the failure of the taxi driver swerve past the lorry would, as Mr. Kateera emphasised, have been inexcusable. The driver of the taxi said that he had "just" negotiated the bend? but it must be remembered that the learned judge had disbelieved his evidence on two most vital facts, the existence of the smoke and the position of the lorry, and had cast some doubt on it as regards the speed at which the taxi had been travelling.

[17] It is, of course, well established that where a trial judge has found two parties negligent and has apportioned the degree of liability between them, an appellate court will only interfere with the apportionment in exceptional circumstances Shariff v. Sethna [1963] E.A. 239. I have come to the conclusion, after some hesitation, that this is a case where we should interfere. I think that a close analysis of the evidence, such as it is, and the use of the words "On the authority" of the two oases cited, indicate that the learned judge must have thought that there was, if not a rule of law, at least a presumption that in cases such as this the driver or owner of the parked lorry is more responsible for the accident then the driver or owner of the vehicle that collides with it. I am quite satisfied that there is no such rule and no such presumption.

[18] There is a practice see Lakhamshi v. A.G. Kenya [1971] E.A. ll8 where a court finds two parties guilty of negligence but considers that there is insufficient evidence to enable a just apportionment of liability to be made, for each to be held 50% liable. I think that practice should have been followed in the present case. I am inclined to the view that the greater responsibility for the accident lay with the taxi driver rather than with the driver of the lorry, but I do not consider that the evidence is sufficient to enable a proper apportion¬ment to be made. I would therefore hold that they must be deemed to have been equally responsible.

[19] I turn now to the third ground of appeal, which is that the learned judge erred in his assessment of the damages. The deceased was a teacher earning a regular salary. At one time, he also ran a lorry, but the learned judge held that this had ceased to be a source of income before the accident. He also had a shamba, producing coffee and bananas, and a eucalyptus plantation. Evidence was given of the income which these crops produced but the learned judge held that it was grossly exaggerated.

[20] To arrive at the dependency, the learned judge therefore looked at the deceased's expenditure. There was evidence as to his expenditure on school fees for his children.The widow also claimed that she received from him Shs. 700 per month, but the learned judge thought this figure exaggerated and reduced it to Shs .500. Mr. Kateera submitted that this was a wrong approach and argued that the damages ought to have been assessed only on the widow's allowance paid out of the proved salary.

[21] With respect, I can see nothing wrong in the reasoning of the learned judge on this issue. Obviously, he was satisfied that the deceased had an income from his shamba in addition to his salary: this explained and justified the figure for expenditure.

[22] Mr. Kateera also dealt with various other matters, of which three may be mentioned. First, he argued that the learned judge had erred in providing expressly for school fees for all the children up to the age of 18 years: he submitted that there was no evidence of the ability or achievement of any of the children and that in the absence of such evidence, it was unlikely that all of them would continue schooling for so long.

[23] I think there is some substance in this submission. Secondly he argued that the learned judge had made no provision for the accelerated benefit to the dependants. The learned judge's comment on this was that it was probably balanced by the effect of inflation. In any case, it is a small matter and the learned judge did make a small deduction in respect of the imponderable factors. Thirdly, Mr. Kateera argued that the widow had failed to mitigate her loss by maintaining the shamba. She said that she had no money for its upkeep, but Mr. Kateera argued that there was no evidence that the deceased had ever used any of his salary to meet the expenses of the shamba; on the contrary it was self supporting and, indeed, profit-making.

[24] The widow said in her evidence that she used to assist in the supervision of the labourers who worked on the shamba and there was no reason why she should not continue to do so. I think there is merit in this submission; although I do not think the use of the word "mitigate" is strictly appropri¬ate. On this question, the learned judge merely said "With a little diligence it should be possible to get some food if not cash crops from the shamba."

[25] While agreeing that the points made by Mr. Kateera are valid, I am not, however, convinced that the award is so high that we ought to interfere, even though it may be on the high side.

[26] If the matter is approached in the more orthodox manner and the wife's allowance, as determined by the learned judge, is multiplied by, say, a factor of 12, the result would be a sum of Shs.72, OOO. In addition, some provision would have to be made for the benefits the family must have received from the shamba income, as shown by the expenditure on school fees.

[27] Some deduction should be made for the imponderable factors, but not all of these operate against the dependants; for example, the deceased might have received increments and perhaps promotion in the teaching profession. All in all, I do not think this is a case where we should be justified in interfering.

[28] Accordingly, I would allow this appeal to this extent, that I would set aside the apportionment of liability made by the learned judge and substitute an apportionment of 50%: 50%. In all other respects, I would dismiss the appeal.

[29] As regards the costs of the appeal, I would order that the appellant pay the costs of the first respondent, who was only concerned in the appeal on the question of quantum. I would order that the second respondent pay one-third of the costs of the appellant, who has only been partially successful in his appeal. We were not asked to change the order for costs in the High Court, and I would leave it unchanged.

[30] As Lutta, J.A., is in agreement, it is so ordered.

LAW, JA.

[31] I have had the- advantage of reading in draft the judgment prepared by the learned Vice-President. I agree with him that the appeal fails on the first and third grounds, those challenging the finding that the appellant's driver was guilty of negligence and the quantum of damages awarded to the first respondent.

[32] As regards the second ground, I am with respect unable to agree with the learned Vice-President that the learned trial judge's apportionment of responsibility should be altered.
As the Vice-President remarked, the evidence was remarkable for its paucity.

[33] The most unsatisfactory aspect in this regard, to my mind, was the un¬explained failure by the appellant to call any evidence whatsoever. The agreed sketch plan, prepared by a police officer who was not called as a witness, is to all intents and purposes useless.It shows the appellant's lorry as being on the left hand side of the road before the impact, but as the lorry ended up completely off the road after the accident it is difficult to say how the police officer was able to assess its position before the accident, if it was then stationary, as the trial judge has found. The brake-marks made by the second respondent's car are shown on the plan as being straight, and in the middle of the road. If this can be relied on at all, it would indicate that the lorry was obstructing a considerable part of the road's surface, which in its unlit condition at night was a very dangerous state of affairs indeed.

[34] The learned trial judge correctly, in my opinion, found both drivers to have been negligent.

[35] He took the view that the lorry driver's negligence was greater than that of the driver of the cart and doing the best he could having regard to the unsatisfactory nature of the evidence, he assessed their respective responsibility for the accident at 75% and 25%. This represents an exercise of discretion with which this Court should not interfere, unless satisfied it is wrong, or based on the application of erroneous principles.

[36] I am not so satisfied in the circumstances of this case. For these reasons I would dismiss this appeal in toto with costs to the respondents.

LUTTA, JA

[37] The facts out of which this appeal arises are fully set out in the judgment of the learned Vice-President, which I have had the advantage of reading in draft, and I do not consider necessary to, restate them.

[38] The learned judge found both the appellant and the second respondent to blame and apportioned the blame on the proportions of 75% to the appellant and 25% to the second respondent. The basis of this apportionment is the learned judge's finding the appellant negligent in that “…the lorry was stationary on the road on its near side, facing in the direction of Mityana and that it was unlit. Leaving an unlit lorry on the road at night is clearly evidence of negligence", and that the second respondent's vehicle negotiated a bend at high speed that by the time he Saw the lorry it was too late to avoid a collision whether or not there was smoke.

[39] He said "Assuming the fact, as I have found it to be, that the lorry was stationary and unlit on its near side, at a speed of 50 m.p.h. coming out of a bond the driver of the Peugeot would hardly be able to avoid a collision because the Peugeot would have been very near to the lorry by the time its headlights illuminated it.

[40] Mr. Kateera has argued that the lorry was stationary and the engine switched off and therefore no smoke was being emitted by it and that the driver of the second respondent's vehicle not only could have seen the lorry but actually saw the lorry in time and could have taken avoiding action. He thus submitted that the learned judge was not entitled in these circumstances to hold that it was the lorry's presence which caused the accident or alternatively that the second respondent was more to blame and therefore this court was entitled to review or vary the learned judge's apportionment of the blame between the appellant and the second respondent.

[41] The learned judge has very clearly stated his findings of fact. These findings have not been challenged by either Mr. Kateera or by Mr. Dobhakta. On my part I agree with the learned judge’s findings of fact although, on the whole, the evidence was very unsatisfactory. After agreeing with the learned judge on his findings of fact on what basis can this Court then disturb the exercise of his discretion in apportion¬ing blame?

[42] It is accepted that where there has been blame on both parties the question of apportioning blame is a matter for the discretion of the trial judge, who has made findings of fact and who saw the witnesses and their demeanour and assessed the degrees of their blameworthiness, and that this Court will, in the acing of any error of principle, interfere with apportionment only in exceptional Circumstances, and then only where it can be shown that the trial judge did not take into consideration some material fact - see Shariff v. Sethna [1963] EA 239 and Karisa v Solanki – [1969] EA 318.Approaching this case With those principles in mind can it be said that there was any error of principle on the part Of the learned judge or can the view he took of the facts before him in this case be criticised?

[43] On the facts he held the view that the appel¬lant was to blame in respect of the acts which had actually something to do with the causing of the accident and so was the second respondent. However, he did not expressly state or draw a conclusion from his findings of fact as to which of the two was more to blame. Mr. Kateera submitted that when the learned judge said that "on the authority" of Karisa v. Solanki (supra) and Thyssen v. Wakisu Estate Ltd. – [1960] E.A. 288 he found "the driver of the Peugeot and consequently the first defendant (second respondent) 25% to blame and the owner of the lorry, that is to say the second defendant (the appellant) 75% to blame", he must have thought the two cases had laid down a rule of law that when a driver of a vehicle runs into an unlit and unattended lorry on the highway, then the owner of such lorry bears the degrees of blameworthiness in the proportions apportioned in those cases.

[44] With respect, I think this was misdirection if it tended to "tie” him down to the same proportions of apportionment of as the ones in the two cases to which he referred.

[45] This would have the effect of fettering his discretion. I wOuld have hesitated to interfere with his apportionment of blame if he had, from his findings of fact, concluded as to who was more to blame; his conclusion would have been determined by his findings of fact and this Court having accepted or agreed with those findings, would not, even though the evidence might have been unsatisfactory, be inclined to alter the proportions of blameworthiness.

[46] However, this is not to say that this Court cannot alter an apportionment of blame which depends on either a conclusion of fact or law in, which this Court differs.

[47] In this case the learned judge failed to say what or who was the main cause of this accident although he hold both the appellant and the second respondent to be negligent.

[48] In these circumstances I would, very reluctantly, interfere with the apportionment of blameworthiness. I would accordingly hold the appellant and the second respondent equally to blame.

[49] I entirely agree with the learned Vice-President’s apportionment of' blameworthiness. On the question of the quantum of damages I do not have much to add as am in full agreement with the learned Vice-President that this Court should not interfere with the sum awarded to the first respondent.

[50] I would accordingly dismiss the appeal in respect of ground 1 and 3.

 
 

 

 
     

 

 

 

 

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