[1943] EACA 6

### COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

## RAMBHAI SHIVABHAI PATEL and DAHIBEN VAGHJIBHAI PATEL. carrying on the business under the name or style of CAMBAY TRADING COMPANY, Appellants (Original Defendants)

# BRIGADIER-GENERAL ARTHUR CORRIE LEWIN, Respondent (Original Plaintiff)

### Civil Appeal No. 2 of 1943

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

Collision between lorry and car on lorry's wrong side of road-No explanation by driver of lorry—Section 42 (a), Traffic Ordinance, 1928—Res ipsa loquitur—Prima facie case of negligence against driver of lorry—Lorry owner held liable.

Respondent's car driven by his step-daughter was proceeding from Nakuru towards Njoro when it met appellant's lorry coming in the opposite direction. The road was straight and 19 feet wide, so that there was ample room for the two vehicles to pass. The car was well on its proper side of the road. Suddenly the lorry came right across onto its wrong side of the road directly in front of the car and collided with it. The driver of the lorry did not give evidence, so there was no explanation of how his lorry came to be on its wrong side of the road. Lucie-Smith, J., found a prima facie case of negligence against the appellants and awarded damages to the respondent. On appeal it was contended that the whole of the road is available for the use of vehicles and the mere fact that the lorry may have skidded over to its wrong side of the road and then collided is of itself no proof of negligence since the skid may have been unavoidable so that no negligence was proved.

Held on Appeal.—That Section 42 (a) of the Traffic Ordinance requires that every vehicle shall in passing traffic coming from the opposite direction be driven on the left or near side of the road, and that accordingly the lorry had no right to be where it was when it collided with the car and that whilst a vehicle with a clear road before it may be entitled<br>to travel on any part of that road the position is altered as soon as another vehicle is<br>seen approaching from the opposite direct keep to his own side and if he collides with the approaching vehicle on his wrong side and gives no reasonable explanation the principle of res ipsa loquitur applies and a prime facie case of negligence is established.

Appeal dismissed.

Scott v. London and St. Katherine Docks Co. 159 E. R. 665.

Wing v. London General Omnibus Co. 1909 2 K. B. 663.

Ellor v. Selfridge & Co. 46 T. L. R. 236.

Halliwell v. Venables (1930) 99 L. J. K. B. 353.

McGowan v. Stott (1923) 99 L. J. K. B. 357 followed.

Atkinson for the Appellants.

Cresswell for the Respondent.

SIR NORMAN WHITLEY, C. J.—The following facts are not in dispute. At the spot where the collision took place the road is 19 feet wide. Appellant's lorry is 5 ft. $6\frac{1}{2}$ in. wide and the respondent's car 5 ft. $3\frac{1}{2}$ in. wide, so that there was ample room for them to pass one another. There was no other traffic on the road and the car was well over on its proper side of the road when the lorry ran into it. The learned trial judge held that in the absence of any satisfactory explanation by the appellants those facts established a prima facie case of negligence against them. Mr. Atkinson for the appellants contends that he was wrong in so holding inasmuch as the whole of the road is available for the use of vehicles and the mere fact that the lorry may have skidded across onto the wrong side of the road is of itself no evidence of negligence. He distinguishes the case from those in which vehicles caused accident on the pavement by saying that they have no right to be on the payement whereas they are entitled to use any part of the road. But section 42 (a) of the Traffic Ordinance, 1928, lays it down that every vehicle shall in passing traffic coming from the opposite direction be driven on the left or near-side of the road. That being so, in my opinion the lorry had prima facie no right to be where it was when it collided with the car. It would of course be open to the driver of the forry to explain that the lorry came to be in that position through no fault of his, as for example if a tyre had burst or if he had had to swerve to avoid running into a child which suddenly ran out onto the road out of a hedge on his left, but the driver was not called as a witness and in the absence of any explanation the case seems to me to fall exactly within the principles laid down in the following cases.

In Wing v. London General Omnibus Co., 1909, 2 K. B., at p. 663, Fletcher Moulton, L. J., observed: "There was no evidence whatever that the accident was due to negligence on the part of the servants of the defendants who were in charge of the omnibus, unless the mere occurrence of the accident amounts to such evidence. In my opinion the mere occurrence of such an accident is not in itself evidence of negligence. Without attempting to lay down any exhaustive classification of the cases in which the principle of res ipsa loquitur applies, it may generally be said that the principle only applies when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occurrence were within the sole control and management of the defendants, or their servants, so that it is not unfair to attribute to them a prima facie responsibility for what happened".

The position envisaged in the concluding sentence seems to be precisely the position here and I cannot agree that a mere suggestion of a possible skid in any way alters the position.

In Ellor v. Selfridge & Co., 46 T. L. R. 236, Scrutton, L. J., quoted the following passage from the leading case of Scott v. London and St. Katherine Docks Co. 159 E. R. 665: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants. and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care", and went on to say that "in his opinion, the fact that in the present case the motor-van appeared on the pavement, where it had no business to be, and injured the plaintiffs on the pavement, and the further fact that the defendants offered no explanation why their van was there, seemed to be more consistent with negligence than with the exercise of reasonable care". Applying those words to the facts of the present case the accident was such as in the ordinary course of things does not happen if a lorry driver uses proper care and the lorry had no business to be right over on its wrong side of the road when about to pass the car coming in the opposite direction. No explanation has been offered by the driver and I am unable to regard the evidence of the expert as to what may have happened as satisfactorily filling the gap.

The judgments in Halliwell v. Venables (1930) and McGowan v. Stott (1923) reported in 99 L. J. K. B. at pages 353 and 357 respectively, both of which are decisions of the Court of Appeal, show that the Saint Katherine's Docks case continues to be regarded as laying down principles which may properly be applied to road accident cases.

In the result it seems to me 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. It then becomes the duty of the driver to keep to his own side and if he goes over to the other side and there collides with the approaching vehicle he does so in a place where he has no right to be and in the absence of any satisfactory explanation by him the Court is entitled to hold that negligence has been proved against him. I would dismiss the appeal with costs.

SIR JOSEPH SHERIDAN, C. J.—I agree and consider that the passage from the case of Scott v. London and Saint Katherine Docks Co. (159 E. R. 665) referred to by the learned Chief Justice of Uganda is applicable to the facts of this case. There was a statutory duty cast upon the driver of the lorry to keep to his left side of the road and that he failed to do, with the result that the collision with the plaintiff's motor car took place. The failure of the defendant to give any explanation of how the accident happened and there being no suggestion of contributory negligence on the part of the driver of the motor car, the decision appealed from was in my opinion correct and I would dismiss the appeal with costs.

SIR HENRY WEBB, C. J.—I agree.

\* Case reported by Sir Norman Whitley, C. J.