IN THE COURT OF APPEAL FOR EAST AFRICA
CORAM: (DE LESTANG, AG.P. DUFFUS, AG.V-P., & SPRY, J.A.)
CIVIL APPEAL NO 29 OF 1968
MRS. LAXMIBEN JAYANTLAL DEWSHI…………….…. . . . . . . . APPELLANT
1. BDULLA ALI
2. KULDIP SINGH OBHRAI t/a
"KULDIP'S TOURING CO."………………………………. . . … . . RESPONDENTS
CIVIL APPEAL NO 10 of 1968
ALKA JAYANTILAL DEWSHI a minor suing through her mother and next friend
MRS. LAXMIBEN JAYANTILAL DEWSHI . . . ………………. . . . APPELLANT
1. ABDULLI. ALI
2. KULDIP SINGH OBHRAI t/a
"KULDIP'S TOURING CO." . . . . . . …………………………... . . . RESPONDENTS
[Appeal from a judgment and decree of the High Court of Kenya at Mombasa (Mosdell, J.) dated 10th May, 1968 in Civil Cases Nos. 285 and 286 of 1966]
22nd November, 1968.
The following Judgments were read:-
DE LESTANG Ag. P.
These are consolidated appeals in which the appellants are different, the appellant in C.A.29/1968 being Mrs. Laxmiben Jayantilal Dewshi, and in C.A./30/1968, the same lady as mother and next friend of her minor daughter.
The respondents are the same in both cases. For the sake of convenience, I shall refer to both appellants as the appellants. The appellants' husband and father respectively hired a ear from the second respondent to take him and the appellants from Mombasa to Dodoma for the funeral of his wife's father and back to Mombasa.
The car was driven by the first respondent and servant of the second respondent. On the way to Dodoma when approaching Tanga, there was either a puncture or a blow out, it is not clear which, in the rear offside wheel.
What is clear is that both tube and tyre of that wheel had a cut which could not be required quickly and so the first respondent had to purchase a new tube and tyre at Tanga. On the wayback to Mombasa from Dodoma a few days later, the offside front wheel sustained a puncture near a place called Handeni. This puncture was repaired at Handeni and the car proceeded on its journey to Tanga.
At Tanga the passengers and the driver rested and took super. They then left on the final stage of the journey to Mombasa but the car had only travelled some 40 miles and was approaching Lunga Lunga when it suddenly left the road, struck a ditch, turned over two or three times and came to rest against a tree.
In the accident the appellants were injured and brought separate suits for damages against both respondents on the ground of negligence of the first respondent and founding their claim inter alia on the doctrine of res ipsa loquitur.
By their defence, both respondents denied negligence. The first respondent also pleaded volenti non fit injuria on the ground that the appellants' husband and father had insisted on his continuing to drive in spite of his request to be allowed to rest at Tanga.
The second respondent also pleaded that the first respondent in the circumstances was the servant not of the second respondent, but of the appellants' husband and father who had hired the car.
At the trial, all these defences were abandoned and the only defence namely that of inevitable accident caused by a tyre burst on the near side rear wheel was raised for the first time.
It is remarkable that until the trial had begun such a defence was not disclosed and the appellants were totally unaware that it would be raised.
Nevertheless, nothing turns on this in this appeal because no objection was taken and it is not a ground of appeal.
This defence found favour with the learned judge who held that the respondents were entitled having regard to the wear on the tread, to have the tyres on the car and that the burst was the cause of the accident. He accordingly dismissed the suits. Hence these appeals.
For the appellants, Mr. Wilkinson contended that the onus of proving inevitable accident, which it is conceded was on the respondents, was not discharged for two reasons.
First because it was not proved that the burst preceded the accident instead of being a result of it. Second because even if the burst tyre was the cause of the accident, the respondents failed to establish that the burst could not have been avoided by proper inspection and maintenance of the tyre.
As regards the first contention, Mr. Wilkinson relies, naturally enough, on the belated disclosure of the defence of inevitable accident, as well as on the evidence of the first respondent who at first stated that the accident was due to a puncture in the near side front wheel and later altered his evidence to say that it was caused by a burst in the near side back tyre.
Both this witness and the appellants' husband and father said they did not hear the noise of the blowout immediately prior to the accident.
Mr. Wilkinson also criticised the evidence of a Mr. Ross who gave expert evidence and expressed the view that the accident was caused by a burst tyre. He based his view on inspections of the car which he made first three days after the accident when the car had been brought to Mombasa and again on some later date, and found a distorted drum and bent driving shaft to the rear nearside axle and damage to the rear near side wheel.
There was thus a conflict of evidence on whether or not the blow-out preceded the accident, and the learned judge accepting the evidence of Mr. Ross and having regard to the probabilities found in favour of the respondents on this point. While it is possible that the damage to the car might have been caused after it had left the road such as by hitting some hard object in the ditch or a tree, there is no evidence apart from the driver's evidence of hitting a tree to support this view. In these circumstances, although I do not find Mr. Ross's evidence impressive, I am not prepared to say that the learned judge was wrong in his conclusion on the blow-out.
As regards the appellant’s second contention, Mr. Wilkinson referred to several English decisions and to Public Road Services v. Riimi (1868) E.A. 22 and submitted that the blow-out was a neutral event which was equally consistent with negligence or no negligence on the part of the respondents.
From there he argued that in the absence of any evidence regarding the type of tyre used and the care and maintenance to which it was subjected, the respondents failed to prove that the accident was inevitable. I propose to refer to one English decision only in which inevitable accident is defined and to the decision of this Court in which a previous decision of this Court namely Msuri Muhhiddin v.Nazzor bin Seif  E.A. 201 in which most of the authorities were concered was followed.(sic) In The Schwan v. The Albano (1892) P.4l9 at page 429 Lord Esher said:
"What is the proper definition of inevitable accident? To my mind these cases shew clearly what is the proper definition of inevitable accident as distinguished from mere negligence - that is a mere want of reasonable care and skill. In my opinion, a person relying on inevitable accident must slaw that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill. That seems to me to be the very distinction which was taken, and was meant to be taken between the case of inevitable accident and a mere want of reasonable care and skill.”
In the Embu Public Road Services case, Sir Charles Newbold, P., after referring to the Msuri case said at page 25
"As I understand the law as sot out by these two judgments of this court, where the circumstances of the accident give rise to the inference of negligence then the defendant, in ardor to escape liability, has to show, in the words of Sir Alistair Forbes, 'that there was a probable cause of the accident which does not connote negligence' or in the words which I have previously used 'that the explanation for the accident was consistent only with an absence of negligence’”.
There is in the present case, a finding by the learned judge which, as I have already said, I am not prepared to interfere with, that the immediate cause of the accident was a burst tyre, and the question for decision is therefore whether the blow-out was due to the negligence of the respondents or more probably to an absence of negligence.
In the present case, the only thing known about this tyro is that after the accident the tread was 50% worn. There is no evidence that it was examined before the accident and it is significant that another tyro on the car sustained a puncture and yet another one had a blow-out or near blow-out. Mr. Wilkinson relies strongly on a passage in the judgment of Buckhill L.J. in Barkway v. South Wales Transport Co. (1948) 2 All.P.R. Where he said at page 465:
"I think that the defendants, in order to avoid liability, must prove to the satisfaction of the court that they took all reasonable steps to ascertain that the tyre was fit for use on Feb. 27, and this I think on the evidence they failed to do. It may have been fit or it may not have been fit. The mere external examination of a tyre which had run 21,750 miles since Aug. 1, 1942, part of which was done on bad roads driven by drivers who had had no instructions to report an unusual and heavy blow to the tyre, and without any examination of its internal surface during the whole of that time, seems to me to leave the defendants with the burden undischarged of satisfying the court that they had taken all reasonable steps to avoid this accident."
He argued that as in the present case there was no evidence at all that the tyre had been examined and found to be in a proper condition before the car was hired nor how it was cared for and maintained the presumption of negligence on the respondents had not been rebutted.
Mr. Mackie-Robertson for the respondents argued that in conditions applying in this country, there was no duty on the respondents to conduct a routine inspection of the tyro for hidden weaknesses as was laid down in Barkway's case and that the learned judge having found that the respondents were entitled to use the tyre in the condition in which it was, this Court ought not to interfere with his decision. Although a similar statement by the learned trial judge in Msuri's case was not disapproved by this Court on appeal, and while I would agree that the duty imposed on the owner of an omnibus must be higher than that placed on the hirer of a car, nevertheless there is clearly a duty imposed on the latter to make at least a visual inspection of the treads and walls of the hired car's tyres.
There is no evidence of any such inspection in the present case either before the car was hired out or before it left Dodoma on its way back to Mombasa, in spite of the fact that one of the tyres had had a puncture and another a near blow-out and was badly cut. There is no evidence of the state of the road at the place of the accident and in particular whether there were sharp stones on the road which could have caused a blow-out. To make things worse, the tyre was not even produced in evidence having been destroyed by Mr. Ross after apparently only inspecting the treads.
In these circumstances, I respectfully regret being unable to agree with the learned judge that the presumption of negligence was rebutted in this case.
I would accordingly allow these appeals and set aside the decision of the learned judge in both suits, substitute orders that the respondents are liable in damages to the appellants and remit the proceedings to the Court below to assess the damages to be awarded.
I would allow the costs of these appeals to the appellants with a certificate for two advocates and also the costs in the court below to date.
The costs of assessing the damages will be in the discretion of the court below. As the other members of the court agree, it is so ordered.
DUFFUS, AG. V-P
I entirely agree with the judgment of de Lestang, Acting President.
I would just shortly comment on the differences between this case and the Msuri Muhhiddin v. Nazzor Bin Seif El Kassaby_ and another  E.A. 201case. In the Msuri case the learned trial judge found on the evidence that the tyres of the bus were good tyres with the tread still on them and that the second respondent, the driver of the bus, had no reason to believe that they were not safe and that he had done his duty of safety to the public by satisfying himself that they were good tyres with the tread still on them.
The trial judge also found, I quote at page 204 of the judgment of the Appeal Court
"…there is evidence that bursts can be caused sharp things on the road. It is quite probable that the rough solid stone under the road near where tyres burst was the immediate cause."
There was also a finding that the driver of the bus was not driving at an excessive speed having regard to the conditions and user of the road, and this Court held that the respondents had discharged the onus thrown on them by the application of the principle of res ipsa loquitur.
The facts in this case are quite different. The learned trial judge on this question of the tyre found
"It could not be said to have been negligence on the part of the owner to have allowed the car to be hired with this tyre on the near side rear wheel.”
With great respect to the learned judge there was not sufficient evidence in this case to justify this finding. As the learned President points out the only evidence in this case about the condition of the tyre is that of the expert Mr. Ross to the effect that the side wall of the tyre was "fractured" or "burst" and that the tread was about 50% worn. Apart from this there was no other evidence about the condition of the tyre.
It may have been an old tyre retreaded, or a tyre with a patched or repaired or otherwise defective side wall.
For some reason the tyre was destroyed and the appellant never given the opportunity to inspect the tyre. Then there was no evidence to show why the burst occurred to the side wall, according to Mr. Ross it may have been due to a violent impact or to a flaw in the tyre or to overheating or to coming in contact with a stone or tree. The driver of the car, the second respondent, did not even suggest a reason.
There was also no evidence at all to show that either the owner of the hired car or the driver ever inspected or even looked at the tyros to see if they were in good condition. I entirely agree with de Lestang, Ag.P that there is clearly a duty imposed on the owner or operator of a hired car to at least make a visual inspection of the treads and walls of the tyres of the car to ensure that they were fit for use.
I therefore agree that the presumption of negligence was not rebutted, in this case, and that the appeal be allowed in accordance with the order set out in the judgment of de Lestang, Ag.P.
I also agree.