[1935] EACA 9

#### COURT OF APPEAL FOR EASTERN AFRICA.

Before LAW, C. J. (Zanzibar), LUCIE-SMITH, Ag. C. J. (Kenya) and McDougall, Ag. C. J. (Tanganyika).

# HASHAM LADHA, Appellant (Original Appellant)

## DURRHEIM BROTHERS, Respondents.

## (Original Respondents).

### Civil Appeal $14/1934$ .

- Avoidance of collision by a driver resulting in damage to his vehicle—Responsibility of driver of oncoming vehicle for damages-Proof of pecuniary loss resulting from damage-Assessment of loss in absence of proof of direct pecuniary loss. - Held (24-9-34).—That where a vehicle was driven by appellant's driver on the wrong side of the road, in the absence of the establishment by appellant of belief that the two vehicles would not have collided had respondents' driver attempted to stop his vehicle at the point where visibility first permitted him to see appellant's vehicle. respondents were entitled to damages resulting from their driver colliding with a rocky wall at the roadside in a successful endeavour to avoid collision with the oncoming vehicle. - Held Further.-That a claim for damages for pecuniary loss accruing to respondents owing to the damaged condition of their vehicle must be satisfactorily proved and in the absence of proof of direct pecuniary loss only such sum as would be sufficient to compensate for actual out-of-pocket expenses, depreciation and loss of interest on capital during the time the vehicle was laid up shall be allowed.

Clark (with Jackson) for Appellant.

Bown (with Satchu) for Respondents.

Respondents sued appellant in the First Class Subordinate Court of Iringa, Tanganyika, for the sum of Sh. 2,259/50 being the amount required to repair and reinstate respondents' motor lorry No. I. R. 230 and for Sh. 1,700 for the loss of use of the said motor lorry at Sh. 50 per day for the period 24-5-33 to 26-6-33 (both days inclusive), which said motor lorry suffered damage owing to the negligent and rash driving of appellant's driver whilst driving appellant's motor lorry No. D. O. 331 on the wrong side of the road on the 23rd May, 1933.

The learned Magistrate gave judgment for respondents for Sh. 3,879/50 and for costs and interest as prayed. Appellant appealed against this judgment to the High Court of Tanganyika and the appeal was dismissed with costs.

#### The grounds of appeal were: $\rightarrow$

1. That on the admission of Johannes Jacobus Klopper, the driver of the respondents' motor lorry, that he made no attempt to stop and the Learned Magistrate having held that the accident might have been avoided if he had done so, the Learned Magistrate ought to have held that the respondents' lorry collided against the bank owing to the negligence of the respondents' said driver in not applying the brakes to stop the lorry.

2. That on the evidence the learned Magistrate ought to have held that the immediate cause of the respondents' lorry ' colliding against the bank was the inability of the said driver to control the lorry at the moment when he first saw the appellant's lorry.

3. That the learned Magistrate has not applied the correct principles of law to the facts of the case.

4. That the learned Magistrate ought to have held that the appellant's driver did all he could to avoid a collision between the two lorries and was not in any way negligent and/or otherwise liable for the accident and damage to the respondents' lorry.

#### In the alternative— $-$

5. That the learned Magistrate has wrongly assessed the damages.

6. That there is no evidence to support the amount of damages awarded.

7. That the damages awarded are remote and excessive.

8. That the learned Magistrate should not have awarded damages on the basis claimed by plaintiffs (respondents) but should have awarded as damages only the value of the lorry immediately before the accident if the said value was less than the cost of repairing the said lorry.

Clark.—Both judgments based on theory that respondents' driver acted in agony of moment. But this is not so. If it were so appellant's case goes. Respondents' driver should have stopped. 47 T. L. R. p. 163. A crossing course.

According to police evidence respondents' driver saw appellant's car about twenty yards off.

I agree that appellant's driver was coming from Dodoma on his right hand; this was wrong.

Respondents had opportunity of avoiding the accident by stopping.

Damages.-No evidence that respondents lost any contract, 2 T. L. R. p. 76, 1897 A. C. p. 596. What general damage was suffered by respondents? (1931) 37 Com. Cases (Times) p. 182.

Bown.—If respondents' driver had stopped what reason to say there would have been no accident. Gibbs p. 11.

Defence partly was that respondents' driver tried to drive across appellant's car, i.e. to respondents' car's right.

Question of fact. 99 L. J. (K. B.) p. 57, 1924 A. C. p. 286. It is not for those who create a danger to be minutely critical of what is done by those who by their fault are brought in danger $(p. 291).$

Damages. $-(1922)$ 2 A. C. p. 242. What freight a ship would have waiting for her and might have expected.

Appellant not cross examined as to basis of assessment of damages. A. C. 1900, p. 113. Too late now in second appeal to challenge damages.

Jackson.—Respondents' driver only saw appellant's can four to five yards away. What was he doing within the fifteen to sixteen yards? The Otranto rule (47 T. C. R. p. 163) is the real test. Speculative profit. If Government hired the damaged lorry. An omission to deny every allegation in Plaint does not mean an admission of facts alleged. 43 Calcutta p. 1001. Proof must be satisfactory.

LAW, C. J.-So far as the facts in this case are concerned, it is clear that the appellant's driver was holding a course on his wrong side of the road almost immediately before the accident. Both the Subordinate Court which tried the case and the High Court in appeal therefrom came to the conclusion that a set of circumstances had arisen at that moment which placed the respondents' driver in a condition which is described as "the agony of the moment". The appellant's learned Counsel, for the purpose of this appeal, have accepted as correct the respondents' version as to how the accident happened, and have argued that the facts therein disclosed nevertheless establish that respondents' driver was not placed in any "agony of the moment" and that the accident was due to his own negligence. The story of the respondents' driver is, shortly, that he was driving their mail lorry from Iringa towards Dodoma, and when about eight to ten yards from a (left-hand) curve in the road he blew the horn and reduced his speed to about eight miles an hour. When rounding the curve, at a certain point he saw appellant's lorry, only four or five yards away, bearing straight down on him. In order to avoid a collision he turned slightly more to his left-hand to give appellant's lorry a chance to pass but, although the driver of appellant's lorry also swerved to his left hand, the two lorries cleared each other, this action on his part caused his lorry to bump against a rocky wall at that side of the road. The evidence of the Superintendent of Police, who was called as a witness for the respondents and who visited the "locus" a few hours later,

È

estimates the visibility to a driver rounding the curve at nineteen to twenty yards. This visibility must have been common to both drivers. The appellant's case is that, in these circumstances, though his driver may have been negligent, the accident which resulted was entirely due to the fact that the respondents' driver did not make any endeavour to stop their lorry, when at the distance of nineteen to twenty yards, he could have seen appellant's lorry had he been keeping a proper look-out. It is not disputed that this short distance was covered by the two lorries in a fraction of time. In support of appellant's arguments reference has been made to the case of The Otranto, reported at 47 Times Law Reports, p. 163, in which it was held that had a certain manoeuvre been carried out by one of two vessels, which should have been done in those particular circumstances, a collision would have been avoided. In the present case, however, there is no reason to believe that the two lorries would not have collided had respondents' driver attempted to stop their lorry at the point where visibility first permitted him to see appellant's lorry. The onus of establishing this was clearly on appellant. On the other hand, the action of the respondents' driver in turning slightly to his left and swerving to the left of the appellant's car did avoid a collision though it resulted in an accident to respondents' car. Nothing has been definitely established by the appellant to show that any other conduct on the part of the respondents' driver would have avoided an accident to one or both lorries. Unquestionably, the perilous situation was created by appellant's driver, and, as observed by the learned Judge who heard the first appeal, the appellant is not to be permitted to be minutely critical of the conduct of respondents' driver. In this connection reference has been made, on behalf of the respondents, to the case of United States of America v. The Laird Line Ltd., reported in 1924 A. C. -p. 286, and to the observations on this subject by the learned Judge (Lord Dunedin) at p. 291. I have no hesitation in agreeing with the findings of the Subordinate Court and of the High Court in the appeal therefrom, both on the facts and the law as applied to those facts, that the accident in question was due directly to the conduct of appellant's driver for which the appellant was properly held to be responsible.

With regard to the question of damages, the only item thereof which was seriously objected to by the appellant in this appeal is the one relating to respondents' claim for Sh. 1,700 which is based on a rate of Sh. 50 per day for thirty-four days, during which period they allege their lorry was idle in consequence of the accident. In my opinion this alleged loss has not been satisfactorily or properly proved. Because appellant had not specifically denied this item there is no reason why respondents should not have been required to prove it. Proof must always be satisfactory (J. B. Ross and Co. v. C. R. Scriven and Others, 43 Calcutta p. 1001). On the other hand, it must be borne in

mind that respondents had a Government contract for carrying mails, and that their lorry was being used for that purpose at the time of the accident. Respondents appear to have other lorries. any of which, no doubt, they could have employed for the purposes of this contract, but the fact remains that they were denied the use of the lorry in question by reason of the accident. In view of the decided cases in this connection, it is clear that they are entitled to be compensated for this particular loss suffered by them through this accident. We have been referred to several cases in point, of which it suffices to mention The Greta Holme. 1897 A. C. p. 596. The *Mediana*, 1900 A. C. p. 113. The Steamship Valeria (1922) 2 A. C. p. 242 and The Edison, 1931-1932, 37 Commercial Cases Reports, p. 182, where this principal has been Both the Subordinate Court and the High Court recognized. allowed damages under this part of respondents' claim at the rate of Sh. 50 per day. In my opinion this rate is excessive and proceeds on a wrong basis inasmuch as it does not appear from the evidence that respondents in fact carry mails daily for Government. The assessment of any amount for this purpose must be somewhat arbitrary but, in the absence of proof of direct pecuniary loss, the Court may award such a sum as will be sufficient to compensate for actual out-of-pocket expenses, depreciation and loss of interest on capital during the time the lorry was laid up (The Mapessa, 1906, P. D. p. 95). In the circumstances, rather than send the case back for assessment on this point, I would fix Sh. 10 per day or Sh. 340 for the thirty-four days. To the extent therefore of Sh. 1,360 (that is Sh. 1,700 less Sh. 340), I would vary the judgment and allow the appeal. Judgment for the respondents will therefore be limited to Sh. 2,519/50 together with costs thereon. With regard to the appellant's appeals to this Court and to the High Court the appellant will have one-third of the Court fees and costs and the respondents will have two-thirds of their costs. These costs to be set-off.

#### McDougall, Ag. C. J.-I agree.

LUCIE-SMITH, Ag. C. J.—This is a second appeal from the decision of the Frst Class Magistrate at Iringa, the first appeal having been dismissed by the High Court of Tanganyika in its appellate jurisdiction. In spite of the ingenious not to say ingenuous arguments and theories of Mr. Clark for the appellant I am of opinion that he quite failed to show any reasons why we should interfere with the finding of the learned Magistrate as regards the negligence of the appellant's servant.

I agree with the learned Judge of Appeal that there seems. to be no reason for disturbing the assessment of damages for necessary repairs.

As regards the Sh. 50 per day for the loss of the use of the lorry while under repair I am of opinion that there is no evidence to support such assessment. Let us examine how the plaintiff arrived at such a figure. He says (p. 20): "Because of the accident I have lost the use of the lorry from the date of the accident. I assess the minimum loss to me at Sh. 50 per day. That is the rate which would be paid to me by Government for the lorry standing idle if Government hired the lorry and kept it idle for a day". That is purely speculative on the Government hiring the lorry and there is no evidence that the Government would have hired that particular lorry if it had been available. The Greta Holme (1897) A. C. 596 is authority for saying that if a man through the negligence of another is deprived of the use of his car for a period he is entitled to the ordinary rights of obtaining damages for the loss occasioned by the negligence of the wrongdoer. The difficulty in this case is that there is no evidence before the Court which would enable us to assess these damages with any accuracy.

That being so and in order to save the expense and delay of having the case remitted for assessment of these damages I am of opinion that they might fairly be fixed at a nominal rate of Sh. 10 per diem, i.e. Sh. 340. I think, therefore, that the amount of the decree should be reduced to Sh. $2,519/50$ .

$A\bar{s}$ regards costs I am-of opinion that the appellant should have one-third of his costs and the same proportion of Court fees both here and in the Court of first appeal—and the respondents two-thirds of their costs of the appeals and their full costs on the amount of the decree (as amended) in the Court below.