[1945] EACA 6

### COURT OF APPEAL FOR EASTERN AFRICA. $\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L}$

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar).

## MOHAMED AKBAR, Appellant (Original Defendant)

# (1) NICHOLAS THURLOW GRENFELL WILLIAMS, (2) YVONNE VILLETTE GRENFELL WILLIAMS, Respondents (Original Plaintiffs)

## Civil Appeal No. 6 of 1945

## (Appeal from decision of H. M. Supreme Court of Kenya)

Negligence—Motor-car collision—Negligence of servant—Contributory negligence -Onus of proving employment of servant.

\* At 7.45 p.m. on 4th March, 1944 the first plaintiff was driving his motorcar in the direction of Nairobi, with his wife, the second plaintiff sitting beside him. The first plaintiff was driving along at between 40 and 45 miles per hour on a straight tarmac road 25 feet wide when he picked out with his headlights the silhouette of a lorry about 45 yards away. The lorry belonged to the defendant and was being driven by defendant's servant. It was on its wrong side of the road and had no lights. Believing the lorry to be stationary the first plaintiff pulled out to the crown of the road in order to pass it. The lorry, however, was not stationary but was coming from the opposite direction and when its driver apparently saw the lights of the oncoming car he tried to cross over to his correct side of the road. It was too late and a collision occurred in which the plaintiffs sustained injuries. The plaintiffs instituted a suit against the defendant to recover damages for personal injuries sustained as they alleged, through the negligence of the defendant's servant. The defendant in his turn alleged that the first plaintiff's negligence was the sole or contributory cause of the accident and that in any event the driver of the lorry was not acting within the scope of his employment at the time. $\label{eq:1} \mathcal{L}(\mathcal{A}) = \mathcal{L}(\mathcal{A}) \mathcal{L}(\mathcal{A}) = \mathcal{L}(\mathcal{A}) \mathcal{L}(\mathcal{A}) \mathcal{L}(\mathcal{A})$

The learned trial Judge held that the defendant's servant had been negligent. that the first plaintiff had not been guilty of contributory negligence, that the defendant's servant was acting in the scope of his employment and he gave judgment for the plaintiffs.

## On appeal by the defendant: —

*Held* $(14-8-45)$ .—(1) That the negligence of the defendant's servant was clearly proved.

(2) That there was evidence to support the learned Judge's finding that the first plaintiff could not have avoided the accident and consequently that he had not been guilty of contributory negligence.

(3) That when a plaintiff in a suit for negligence proves that damage has been caused by the defendant's motor car, the fact of ownership of the lorry by the defendant and of the driver being in his employment at the time and actually driving the vehicle was primafacie evidence that the driver was acting within the range of his employment and that the defendant was liable.

Appeal dismissed.

Barnard v. Sully 47 T. L. R. 557 approved.

S. C. Gautama for the appellant. $\cdot$

Kaplan for the respondents.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—We do not find it necessary to call on counsel for the respondent in this case. The facts are clearly set out in the judgment of the learned Judge. Shortly he found that in connexion with the accident that occurred the lorry driver of the appellant was negligent secondly that there was no contributory negligence on the part of the respondent the driver of the motor-car. Thirdly he found that the lorry at the time of the collision was being driven by the appellant's servant in the scope of the latter's employment. As to the first point, the evidence of negligence is irresistible and the ground of appeal with regard to it was abandoned. On the question whether there was contributory negligence there is evidence to support the finding of the learned Judge that there was not. The question here is whether the respondent could have avoided the consequences of the lorry driver's negligence by the exercise of ordinary reasonable care. The learned Judge found that when the lorry which was without lights on the wrong side of the road was picked up by the lights of the motor-car, the driver of the car reasonably believed that the lorry was stationary. Acting in this belief the driver of the motor-car did what was not only reasonable but correct and changed his course so as to pass the lorry; he aimed at passing the lorry on the right. Unfortunately the lorry was not stationary and apparently seeing the lights of the car at a distance of 45 yards the driver attempted to cross over to his correct side. A collision thereupon became inevitable. This case is clearly distinguishable from the case of *Tart v. G.* $\dot{W}$ *. Chitty* and Company, Ltd., 2 K. B. (1933), 453. In that case the plaintiff had either been driving at an excessive speed or had not been keeping a vigilant look-out and it was held when the case went on appeal to the Divisional Court, differing from the County Court Judge, that not only was there no evidence to support the judgment, but that the evidence was all the other way. On the final point as to whether the appellant's liability for the negligence of the servant was established we agree with the learned trial Judge in his applying the dictum in the case of *Barnard v. Sully*, 47 T. L. R. (1930-31), 557, that the facts of ownership of the lorry by the appellant, and the driver being in his employment at the time of the accident, and the man who was actually driving amounted to prima facie evidence of liability of the appellant. The Judge considered the question whether the appellant had successfully rebutted the presumption raised and found that he had not. Having scrutinized the evidence of the appellant on this issue, the finding that the presumption had not been rebutted appears to us to have been reasonable. The appeal is dismissed with costs.