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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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