Fernandes v A.F.E.A. Noronha (Civil Appeal No. 52 of 1968) [1969] EACA 2; (30 May 1969)

30 May 1969

Criminal Appeal No. 52 of 1968

COURT OF APPEAL FOR EAST AFRICA

ARCHIE FERNANDES

v.

A.F.E.A. NORONHA

 JUDGMENT

BEFORE: PRESIDENT: Newbold

VICE-PRESIDENT: Duffus

JUDGES OF APPEAL: Law

  Represented By:

Editor's Note: Appeal from the judgment and decree of the High Court of Kenya at Nairobi, Kenya (Trevelyan, J.) dated 26th July, 1968 in Civil Case No. 1330 of 1961

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 pathway 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 statement 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 circumstances 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 coming 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