[1950] EACA 322

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR RONALD SINCLAIR (Vice-President), BRIGGS and BACON, Justices of of Appeal

## R. C. CHRISOFULLI, Appellant (Original Defendant)

# THE EAST AFRICAN TOBACCO CO. LTD. Respondent (Original Plaintiffs)

## Civil Appeal No. 28 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, MacDuff, J.)

Negligence—Motor-car accident—Negligence of plaintiff—Whether contributory negligence.

The Supreme Court had awarded to the respondent damages for negligence arising out of a collision between two motor-cars. It was submitted for the appellant that the finding of the trial Judge that the respondent's car was on the correct side of the road at the time of the collision was against the weight of the evidence, that the evidence established that the respondent's car was partly over the centre of the road and that the respondent's driver was guilty of contributory negligence. The facts are fully set out in the judgment.

Held (29-9-56).—While any contributory negligence. however small, on the part of the respondent's driver would have barred the respondent's claim, the evidence showed that even if the respondent's car had been wholly on its correct side of the road the accident would still have happened. It followed that even if the respondent's driver were negligent in<br>driving on the crown of the road, such negligence did not contribute to the accident.

#### Appeal dismissed.

Cases referred to: Yorkshire Dale Steamship Co. v. Minister of Transport, (1942) A. C. 691; Service v. Sundell, 99 L. J. K. B. 55: (1929) 45 T. L. R. 569; The Eurymedon, (1938) 1 All. E. R. 122; The Margaret, 5

## Cleasby for appellant.

#### Todd for respondent.

SINCLAIR, Vice-President.—This is an appeal by the defendant from the judgment and decree of the Supreme Court of Kenya awarding the plaintiff company the sum of Sh. 4,076 damages for negligence. The accident which gave rise to these proceedings occurred at about 11.30 a.m. on 17th August, 1953, on the main Mombasa-Kwale Road when a Standard Vanguard No. KAD 82 owned by the respondent company and driven by its servant, one Obo bin Din, came into collision with an Austin No. KAD 403 driven by the appellant. The accident occurred about 16 miles from Mombasa; the Vanguard was going towards Mombasa and negotiating a blind left-hand bend, on a slightly downhill grade, while the Austin was being driven towards Kwale and was negotiating a blind right-hand bend on a slightly uphill grade. The road was of unformed gravel surface. Entering the bend from the Kwale direction there was a camber to the right of the road but, at the point of impact, the camber was to the left of the road and there was a cliff on the left. There was a definite crown on the road.

The respondent alleged that the appellant was negligent in that he drove at an excessive speed, failed to keep a proper lookout, failed to give any or sufficient warning of his approach, drove on the wrong side of the road and failed to manoeuvre his car so as to avoid colliding with the respondent's car. The appellant denied negligence and pleaded, in the alternative, that if he were negligent, then

the respondent's servant was guilty of negligence which contributed to the accident. The particulars of negligence which he alleged are similar to those alleged by the respondent.

The learned trial Judge found that there was no contributory negligence on the part of the respondent's driver and that the only cause of the collision was the negligence of the appellant in being on his incorrect side of the road Mr. Cleasby, for the appellant, does not dispute that the appellant was on the wrong side of the road and that for that reason he was negligent; but he contends that the finding of the learned Judge that the respondent's car was on the correct side of the road at the time of the collision was against the weight of the evidence, that the evidence established that the respondent's car was partly over the centre of the road and that the respondent's driver was guilty of contributory negligence.

The learned Judge arrived at his finding as to the relative positions of the two cars at the time of the collision from their position on the road after the collision. In his judgment he said: -

"The facts with two exceptions are not in dispute.

The point of collision and the positions of the two cars in the road is not disputed. A rough sketch and measurements were agreed between the defendant and Mr. Dave on the scene. These measurements were confirmed by Chief Inspector Wilkinson when he arrived on the scene later. The first point that may be in dispute is whether the defendant shifted his car some 7 feet or more after the collision. The evidence of the plaintiff's witnesses on this point is vague, but Chief Inspector Wilkinson has given evidence that when he arrived the vehicles were only a few inches apart, which corroborates the plaintiff's driver's evidence that all that was done was that the defendant lifted up the bumpers and let the cars settle back. I cannot accept therefore the defendant's evidence that after the accident he got some Asians to push his car down the hill, i.e. away from the point of impact for 6 or 7 feet and to its right-hand side, i.e. further from the centre of the road. The other point is whether the plaintiff's car struck the defendant's vehicle at quite the angle shown on the sketch made by Mr. Dave. The evidence of Chief Inspector Wilkinson was that the vehicles appeared to have collided head on. Plaintiff's driver's evidence was that the vehicles hit head on but each slightly left of centre. The sketch by Mr. Dave, however, would seem to indicate clearly that the plaintiff's driver having negotiated the first part of his turn was engaged in pulling further to his left from the centre of the road. Since the track marks of defendant's car indicate that he did not change direction, it becomes clear that the plaintiff's car did collide at an angle, although possibly not at quite the angle shown on Mr. Dave's sketch.

Referring again to the position of the vehicles at the time of collision, the front of plaintiff's car was 9 feet from its right-hand side of the road, the road was 19 feet wide, so that it can be said that within reasonable limits he was on his correct side of the road. His wheels were 5 feet 6 inches from his left side of the road. The defendant, on the other hand, had his front right wheels even closer to his right, or incorrect side, i.e. 5 feet 4 inches, than was the plaintiff's car. His front left wheels were 8 feet from his left or correct side of the road. In effect the defendant was almost wholly on his wrong side of the road. From these positions alone, does it appear that the plaintiff's driver could with reasonable care have avoided the accident? It does not appear to me that he could have done so under any circumstances. Accepting that there was a cliff on his left, he must be entitled to keep a short distance from it. Had he been 3 feet further in to his left he must still have collided with the defendant's vehicle. The defendant says he had stopped at the time of impact. Perhaps he had, but even accepting that as being correct, at the

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us that the difficulty has been such that Judges are now dropping the practice of using the phrase 'contributory negligence', and appear to be having recourse to various adjectives preceding the word 'cause', such as 'the real cause', 'the effective cause', 'the substantial cause', 'the proximate cause', and a variety of adjectives of that sort. Lord Hewart, C. J., in this case declined to use the word 'substantial cause' because he said he never used adjectives, but having said so, he proceeded to ask the jury 'what was the real cause' which appeared to raise the same difficulty. I agree very much with Lord Sumner's view in the much-discussed case of British Columbia Electric Railway v. Loach that you had better use no adjective at all, ask the jury the cause with proper explanations, and bear in mind that there is not necessarily only one cause, there may be two causes, and you must make it clear to the jury that you are not asking them to find whether there is one cause to which the accident should be attributed, but you must point out to them that there may be two causes, within the meaning of the common law, or even three, to which the accident should be attributed."

The criticism of the Court of Appeal in that case was directed not so much to the use of the word "real" but to its use without sufficient explanation. Greer, L. J., said at p. $61:$ —

"Different adjectives have been used from time to time to describe the sort of cause that gives rise to legal liability. At one time the word 'proximate' as distinguished from 'remote' was deemed adequate, but latterly Judges have preferred other words such a 'effective', 'substantial' and 'real'... In order to succeed the plaintiff had to prove that the collision which gave rise to his damage was caused by the defendant's negligent driving. If the defendant gave evidence proving that there was negligence on the part of the plaintiff which was one of the contributory causes of the collision the plaintiff could still succeed if he could show that after the defendant became aware of the plaintiff's negligence he might have neutralized it by the exercise of reasonable care. ... If the plaintiff establishes to the satisfaction of the jury that there was this extra or additional negligence on the part of the defendant, then it is logically correct to say that the real cause of the collision and the consequent injuries and damage to the plaintiff was the negligence of the defendant, and the earlier negligence of the plaintiff is irrelevant. This question, which is involved in any action in which contributory negligence is pleaded, is included in the broad question: Was the accident really caused by the defendant's negligence? I see no objection to a summing-up which contains a direction that in order to find for the plaintiff the jury must be satisfied that the plaintiff's injuries and damage were really caused by the defendant's negligence provided that the meaning of 'really caused' is sufficiently explained to the jury. It would be especially necessary to point out that if the accident is really caused by the first negligence of the plaintiff, then it is not really caused by the negligence of the defendant in the sense in which the words are being used in that direction."

Mr. Cleasby also referred to *The Eurymedon*, (1938) 1 All. E. R. 122; The Margaret, 54 L. J., p. 18; Swadling v. Cooper, (1931) A. C. 1; The Volute, (1922) 1 A. C. 129, and *The Boy Andrew*, (1947) 2 All. E. R. 350, amongst other cases. I conclude from these authorities that there is no objection to the use of the test: "Whose negligence was really and substantially the cause of the accident?" if the Judge fully explains to the jury, or fully appreciates, if he is sitting alone, that the words are used in the sense indicated by the Court of Appeal in *Service v. Sundell* and that if there is any contributory negligence. however small, on the part of the plaintiff in the sense in which that expression is legally interpreted, the plaintiff cannot recover.

I return now to the passage in the judgment of which Mr. Cleasby complains. The learned Judge first found that, even if there were negligence on the part of the respondent's driver, this had been corrected by the time of the collision by his having got back on to his correct side of the road, so that at that time there was no contributory negligence on his part, and the appellant's being on his incorrect side of the road was the only cause of the collision. He then went on to find that "even if there were some, and it must be slight, contributory negligence on the part of the plaintiff's driver, it was the negligence of the defendant which was really and substantially the cause of the accident". In view of his first finding that even if the respondent's driver were negligent, it was not contributory negligence, I think he must have intended to use the expression "contributory negligence" in his second finding in the sense in which it has been legally interpreted and not in a wider sense. That was a definite misdirection for, as I have said, any contributory negligence, however small, on the part of the respondent's driver would bar the respondent's claim.

The learned trial Judge based his finding that the respondent's driver was not guilty of contributory negligence and that the appellant's being on the wrong side of the road was the only cause of the collision on a misapprehension of the facts. The primary facts have, however, been established and the only question is what is the true inference from those facts. In the circumstances it is open to this Court, and, indeed, it is our duty, to say what the true inference should be, namely whether or not the respondent's driver was guilty of contributory negligence.

It is apparent that the respondent's driver was negotiating the bend on the crown of the road and that when he saw the appellant's car he pulled to his left but had not wholly succeeded in regaining his correct side of the road before the collision. On the other hand the appellant's car was almost entirely on its incorrect side; only about a foot of its width was on the correct side of the centre of the road and there was only 5 ft. 4 in. between its off-side wheels and the cliff on the off-side edge of the road. The appellant braked when he saw the other car and, according to him, his car was stationary when the collision occurred but he made no attempt to turn back to his correct side. Each driver saw the other car approaching as early as could be expected, when they were 40 or 50 ft. apart. Each driver admits to travelling at about 25 m.p.h. so that, even allowing for the slowing down of the speed of the cars, there could hardly have been more than a second or two between the time when the drivers saw each other and the collision. In the position in which the vehicles were on the road there was obviously no opportunity for either driver to manoeuvre his vehicle so as to avoid a collision. I think the worst thing the appellant could have done was to brake, rather than to swing to his left, but whatever he might have done a collision was inevitable in the circumstances.

In those circumstances was the respondent's driver negligent in driving on the crown of the road and, if so, did his negligence contribute to the accident? The onus of proving contributory negligence is on the appellant and, in my view, the facts do not establish that the respondent's driver was negligent. To drive on the crown of the road is not per se negligence; but it is negligence if, by so doing, the driver is unable to move to his correct side of the road in time to pass with safety oncoming vehicles which also might be on the crown of the road. Had the appellant been driving on the crown of the road, as the respondent's driver was, the respondent's driver would undoubtedly have seen the appellant's car at an earlier stage and there is nothing which appears from the facts of the case to suggest that he would not then have had sufficient time to move to his correct side of the road so as to pass the appellant's car with safety. But by taking this blind corner almost entirely on the wrong side of the road, the appellant himself reduced the distance by which he could be

seen by oncoming traffic and so deprived the respondent's driver of the opportunity which he could reasonably expect to have, of moving to his correct side of the road. A reasonably prudent driver should foresee that other drivers might be negligent, but I do not think he could reasonably be expected to foresee that the driver of an oncoming vehicle would be so grossly negligent as to take this blind corner almost entirely on the wrong side of the road so as to leave no room for another vehicle to pass on the correct side, and at a speed which. notwithstanding the finding of the learned Judge, I consider to be excessive in the circumstances. For these reasons I am of the opinion that negligence on the part of the respondent's driver was not established.

Even if the respondent's driver were negligent in driving on the crown of the road, I do not think that such negligence contributed to the accident. In Tuff v. Warman, 27 L. J., C. P., 322, Wightman, J., dealt with the question of contributory negligence as follows:

"It appears to us that the proper question for the jury in this case. as indeed in all others of a like kind is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that, but for such negligence or want of care and caution on his part, the misfortune would not have happened. In the first case the plaintiff would be entitled to recover; in the latter not, as but for his own misconduct the misfortune would not have happened."

In the present case, had the respondent's driver been wholly on his correct side of the road at the time of the collision so as to be free of any suggestion of negligence on his part, I am satisfied that substantially the same accident would have happened. It was suggested that as the respondent's car would then have been more to the appellant's right, the appellant by swerving to his left might have been able to avoid a collision. But had the respondent's car been closer to its near-side of the road, the distance by which it could have been seen by the appellant would have been still further reduced. In view of the fact that the appellant's car was only 5 ft. 4 in. from the off-side of the road and the fact that, on the edge of that side of the road there was a cliff which would prevent the respondent's car from moving close to it with any safety, I find it impossible to believe that, in the time between the moment when each driver would become aware of the approach of the other vehicle and the moment when the vehicles would meet, which could hardly be more than a second, any action taken by either driver could have avoided a major collision. Mr. Cleasby submitted that that would have been a different accident and not the accident in respect of which the respondent claimed damages. Although the point of impact would, no doubt, not have been precisely the same, it would, in my view, have been substantially the same accident. Questions of contributory negligence should not be decided on such fine distinctions. "The question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it"; per Viscount Birkenhead in The Volute, (1922) 1 A. C., 129. The ordinary plain common sense of the matter is that, even if the respondent's car had been wholly on the correct side of the road, the accident would still have happened. It follows that even if the respondent's driver were negligent in driving on the crown of the road, such negligence did not contribute to the accident.

I would, therefore, dismiss the appeal with costs.

BRIGGS, J. A.—I agree.

BACON, J. A.-I agree.