[1951] EACA 339

## ORIGINAL CIVIL

### Before WINDHAM, J.

### GIDEON GATERE, Plaintiff

### v.

# CAPTAIN D. LENNAN, Defendant

## and

# Rev. JEREMIAH WAITA, Plaintiff

### v.

# CAPTAIN D. LENNAN, Defendant

### Civil Cases Nos. 917 and 992 of 1949

Negligence—Predominant and effective cause of accident.

The plaintiffs in two consolidated cases sued under the Fatal Accidents Ordinance (Cap. 9) as persons beneficially entitled to sue on behalf of the driver and passenger of a motor cycle who were killed when the motor cycle collided with a car driven by the defendant at night. The Judge found that the motor cycle was being driven without lights and the defendant thereby failed to see it until it was too late to avoid the accident.

Held (27-7-51).-(1) Driving the motor cycle without lights was an act of negligence and was the primary and effective cause of the accident.

- (2) That the defendant's speed estimated to be 45 miles per hour was not excessive in the circumstances. - (3) That the defendant being on the crown of the road and not on his correct side did not establish any case of res ipsa loquitur against him. - (4) That the deceased passenger was saddled with the negligence of the driver under<br>the maxim "volenti non fit injuria".

Cases dismissed.

Cases cited: Yorkshire Dale Steamship Co. v. Minister of War Transport (1942)<br>A. C. 691; Nuttall v. Pickering (1913) 1 K. B. 14, and Patel & Another v. Lewin; 10<br>E. A. C. A. 36.

### B. Figgis for defendant.

M. K. Bhandari for plaintiffs.

JUDGMENT.—The plaintiffs in these two consolidated cases sue under the Fatal Accidents Ordinance (Cap. 9) as persons beneficially entitled to sue respectively on behalf of two deceased persons, Solomon Gideon (in C. C. 917/49) and John Jeremiah (in C. C. $992/49$ ) who were respectively the driver and passenger of a motor cycle which on the night of 9th/10th April, 1949, collided with an oncoming motor-car driven by the defendant, as a result of which the two deceased lost their lives. The plaintiffs claim damages on the ground that the collision was due to the defendant driving at a great speed and suddenly going on the wrong side of the road, thereby colliding with the motor cycle which was being driven on its correct (i.e. left) side of the road. The accident occurred on the Nanyuki-Nyeri Road about half a mile outside Nanyuki, towards which town the car was travelling.

The defence to the action is that the defendant was not driving at an excessive speed or otherwise recklessly or negligently, that the swerving of his car to the right was due to a last-moment effort to avoid the oncoming motor cycle, and that the real and effective cause of the accident was the fact that the motor cycle was being driven without lights, and that the defendant for that reason failed to see it until it was too late to avoid the accident.

The most important question of fact to decide in this case to my mind, is whether or not the motor cycle had its lights on when it approached and collided with the defendant's car. On this point the two riders of the motor cycle cannot of course give evidence; nor has the defendant himself testified, since he is at present in England. But the defence have called two witnesses on the point, one being the only other passenger in the car when the accident occurred, a Mr. Robson, and the other being police constable Kipruto. Mr. Robson, who impressed me as an honest witness, stated that just before the collision he saw nothing ahead; he is positive that he saw no lights ahead, nor even the motor cycle itself, and that if it had had lights he must have seen it. The first thing he was aware of was a pulling of the brakes of the car and slight swerve to the right just before the impact. Police constable Kipruto testifies that while he was standing about 180 paces from the main road he saw the motor cycle on that road and noticed that it had no lights. He then saw the car approaching from the other direction, with its lights on, and then saw the collision. Two witnesses called for the plaintiffs, on the other hand, Paulo Mahehu and Joseph Carway, state that just before the two deceased men set out on their fatal trip, after midnight, Paulo repaired the lights of the motor cycle, and that they were lit when the deceased set off from Paulo's house, a distance of about a quarter of a mile from Paulo's house. Inspector Higginson, however, who was called by the plaintiffs but whom I look upon as a neutral and reliable witness, states that when he came to the scene that night very shortly after the accident he examined the motor cycle's lights (which were then not lit) and concluded that it could not have had its lights on at the time of the accident, for mechanical reasons which I accept. He also states that when next morning in Paulo's and Joseph's presence, he stated that the motor cycle had had no lights, neither Paulo nor anyone else challenged this statement, a piece of evidence in flat contradiction with that of Paulo and Joseph, who say that Paulo did challenge it. On all the evidence I am led to the conclusion that Paulo and Joseph are lying when they say that the motor cycle's lights were repaired shortly before the accident, and I find as a fact that its lights were not lit that night.

With regard to the speed at which the defendant's car was travelling when the accident occurred, the evidence of the two eye-witnesses and that of Inspector Higginson (on deductions from the skid marks) put it at speeds varying from 40 to 50 miles per hour. A fair estimate on all the evidence would, I think, be 45 miles per hour.

Inspector Higginson's evidence, based on an examination of the skid marks and the damage to and position of the car and the motor cycle when he came to the scene, shows that immediately before the impact the car was being driven on the crown of the road, $5\frac{1}{2}$ inches to the right of dead centre, leaving a width of 6 feet 5 inches of road on its right side and 7 feet 4 inches on its left, and that the motor cycle was struck by the front right-hand mudguard and lamp of the car, while it (the motor cycle) was on its left side of the road but not to the extreme left. The car's skid marks began at about the point of impact, when it skidded across to the right of the road, into the bank, and overturned, apparently carrying the motor cycle with its unfortunate riders with it.

At the time of the accident the moon was shining and the car had its headlights on, the normal range of which is 30 yards. The road was dry, and ran straight for 200 yards in either direction from the point of collision.

On all this evidence I think there can be little doubt that the primary and effective cause of the accident was the fact that the motor cycle was being driven without lights. That is an act of negligence, even of recklessness, which speaks for itself. And it matters not whether the test to be applied is what was the predominant and effective cause of the accident, looking at it from a broad

and common-sense point of view, which is the test laid down in Yorkshire Dale Steamship Co. v. Minister of War Transport (1942) A. C. 691, or whether it be the "last opportunity" test, time-honoured but recently somewhat discredited as a practical criterion. For even applying this latter test, it is clear that the driver of the motor cycle must have seen the headlights of the car long before the driver of the car could have seen the unlighted motor cycle, and, knowing the risk he was running in driving his motor cycle without lights, he could and should have kept well in to the left of the road, or even drawn on to the unmade-up earthen border, so as to avoid any possibility of an accident. As it was, there is no reason to suppose that the defendant, despite the moonlight, could have seen the motor cycle byond the 30-yard range of his own headlights. and it cannot in my view be said that his last-moment attempt to avoid an accident by jamming on his brakes, thereby causing an unintentional skid to the right, was itself a negligent act.

It has been contended on the plaintiff's behalf that the defendant was negligent in that (a) his speed was excessive, and (b) he was not driving on the left of the road. With regard to his speed, I do not consider that 45 miles per hour, on a straight and dry road, at night time and when there was (apparently) no traffic (ahead, was excessive. With regard to the fact that the car was being driven on the crown of the road (the $5\frac{1}{2}$ inches on the wrong side of the exact centre is I think too trivial a deviation from the crown to be taken into account), it is settled law that the "keep to the left" rule is only an obligation at common law when there is other traffic either overtaking or passing: *Nuttall v. Pickering* (1913) 1 K. B. D. 14. And this can only reasonably be confined to cases where the driver knows or ought to know that there is other traffic either overtaking or passing. In the present case, by reason of the absence of lights on the motor cycle, the defendant had no reason to know that it was approaching him until it was too late to avoid the accident, and he was therefore under no obligation to have been driving on the left-hand side of the road. I have been referred by learned counsel for the plaintiffs to Patel and Another v. Lewin, 10 E. A. C. A. 36, as authority for the proposition that the fact that when the collision occurred the defendant's car was not on its left-hand side of the road establishes a case of res ipsa loquitur against him. But as I read it, what that case decided was that "whilst a vehicle with a clear road before it may be entitled to travel on any part of that road, the position is altered as soon as another vehicle is seen to be approaching from the opposite direction". This is the interpretation which the Court of Appeal for Eastern Africa placed upon section 42 (a), now section 49 (a) of the Traffic Ordinance, Cap. 232, and the important words in the passage, for the purpose of the present case, are the words "is seen". The defendant was entitled to drive on the crown of the road until he saw (or until he ought to have seen) the approaching motor cycle. Owing to the latter's absence of lights he only saw it when it was too late to draw in to his left and thus avoid a collision.

One further point remains, namely that at the time of the accident the defendant was not in possession of a certificate of competency, or of an annual driving licence, and that he was not insured against third party risks. I have recorded the uncontradicted evidence on these points for what it is worth, but in my view it is wholly irrelevant to the question whether on this particular night, at or immediately before the accident, the defendant was or was not driving negligently or recklessly thereby causing the accident.

On all the evidence I find that the defendant was guilty of no negligence or recklessness, and that on the contrary the accident was caused by the negligence of the driver of the motor cycle in having no lights, with which negligence his passenger must also be saddled, under the maxim volenti non fit injuria. Both the actions are therefore dismissed with costs.