[1951] EACA 27

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR DAVID EDWARDS, C. J. (Uganda), and LOCKHART-SMITH, Ag. Vice-President.

## (1) G. D. PATEL and (2) KOKILABEN ALIAS SARALA, Appellants (Original Plaintiffs)

v

## THE UGANDA COMMERCIAL Co. (KAMPALA) Ltd., Respondent (Original Defendants)

Civil Appeal No. 11 of 1951

(Appeal from the decision of H. M. High Court of Uganda—Low, J.)

Uganda-Damages for negligence-Contributory negligence by infant-Contributory negligence by adult guardian.

The infant appellant, aged less than two years, was injured by a motor lorry driven by the servant of the respondents. The respondents denied negligence and pleaded negligence on the part of the infant appellant and also on the part of her father. The High Court dismissed the appellants' claim.

Held (12-4-51).—The High Court was right in holding that contributory negligence of an adult guardian does not preclude the right of the infant to recover damages. It was also right in holding that a child under two years of age has no capacity for negligence.

On the question of negligence on the part of the driver, however, the High Court had come to a conclusion, on the facts it had accepted, which was not reasonable. The appeal<br>would therefore succeed and the case be remitted to the Supreme Court for assessment of damages

Cases referred to: Oliver v. Birmingham and Midland Motor Omnibus Co., 1933 1 K. B. 35; Daborn v. Bath Tramways Motor Co., Ltd., 1946 2 A. E. R. 333.

Wilkinson for the appellants.

Russell for the respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This is an appeal from a judgment of the High Court of Uganda. The action was one for special and general damages brought by the father of an infant female child who was run into and injured by a motor lorry driven by the respondent's servant, Leo Mwinga. It is admitted that at the time of the accident the respondent's servant was acting in the course of his employment, in driving this motor vehicle.

In the written statement of defence negligence was denied and negligence on the part of the infant was pleaded. In view of the fact that it was established in evidence that the infant plaintiff was under two years of age the learned Judge, rightly in my opinion, held that no question of her contributory negligence could arise. The learned Judge would also seem to have been right in his conclusion in law that the father's lack of care towards an infant of such tender vears did not amount to contributory negligence so as to relieve the driver of the motor vehicle of responsibility if he himself was negligent. I admit that this aspect of the case at first gave me some difficulty because in the older English cases there are decisions which suggest that the negligence of a parent or guardian can be attributed vicariously to a child; however since Oliver v. Birmingham and Midland Motor Omnibus Co. (1933) 1, K. B. 35 the rule seems to have been followed that the contributory negligence of an adult guardian does not preclude the right of the infant to recover damages. In this case Swift, J., in discussing the doctrine of identification said this: -

"An infant a day old has rights. Nobody has any right to injure him by negligence... if a man who is 50 years of age is entitled to recover against a wrongdoer, notwithstanding the fact that someone else has contributed to his injury, why should not an infant who has been maimed for life, as the infant in this case has been, recover against the defendants?"

So here it would be wrong because the first defendant failed in his duty to protect his infant daughter from the danger of the highway, that she would be deprived of damages if the injuries inflicted on her were caused by the negligence of the respondent's servant. According to the agreed medical report her permanent disability is 56 per cent. She has lost her left foot and two fingers of her left hand.

Thus we come to the crux of this case. Is the learned Judge's finding of fact that negligence on the part of the driver of the vehicle was not established open to attack? He clearly thought the evidence of the appellant's witnesses unreliable as he was entitled to do and for this he was not persuaded that the lorry was being driven at an excessive speed. That would be an end of the matter save for one feature. The learned Judge, although he accepted the driver's assurance that he was keeping a proper look out and that he did his best to take avoiding action, did not accept that part of his evidence which related to the position of the infant on the road when he first saw her. According to the driver when he rounded the bend which brought his vehicle into the main street of this village of Bamunanika, there were no pedestrians or vehicles on the road ahead of him, but he did see a little child at the side of the road. She was standing there with her back to the road. It never occurred to him that she would suddenly turn round and dash across the road but this according to him is what she did. Unfortunately for the respondents, on account of the shortness of the distance between the bend in the road and the spot where the lorry hit the child taken together with the driver's estimate of his speed. which he said was 20 to 25 miles an hour, it is quite impossible to credit this part of his story, and the learned Judge in fact rejected it. In order to accept it one would have to believe that this little toddler was capable, after deciding to cross the road, to cover a distance of approximately 20 ft. in something a little over a second. The learned Judge therefore came to the conclusion, and I consider rightly, that the child must have been somewhere in the road when the lorry emerged from the side road. It is at this stage that with great respect I part company with the learned Judge. If the child was on the road in the path of the vehicle, as it seems she must have been, at the moment the driver of the lorry was first able to see her, is it right to say that her continuation across the road to her father's shop "constituted a sudden hazard for which it would be quite unreasonable to blame the driver if he failed to avoid it"? Having looked at the photographs and rough sketch map which were accepted and agreed by the parties it seems to me that it is just the kind of hazard which a careful driver, who knew the road, and there is evidence that this driver did know the road, might well expect to come across on coming into the main street of this village where the highway is flanked on each side by shops or other buildings. I am forced to the conclusion therefore that the driver of this vehicle must have rounded the bend at a speed which was too great to enable him to avoid any hazard which presented itself after he rounded the bend for on his showing $\mathsf{he}$ $was$ $\mathsf{not}$ able in time to $_{\rm own}$ $\mathsf{to}$ pull up prevent hitting the child. In my opinion he should have been able to do so. In approaching a frequented highway round a bend it may be necessary for a driver to stop or almost stop his vehicle in order to make sure that the road is clear ahead, and if he does not do so he will be responsible for any consequences which

he cannot avoid. In this case it may well be that the driver showed no such reckless disregard for other users of the highway that a criminal prosecution could have been well founded, but I am unable to agree, that on a view of all the evidence and surrounding circumstances, the learned Judge was right in coming to the conclusion that the plaintiffs failed to establish negligence, that is to say negligence of a nature sufficient to support a civil claim for damages. Once it is conceded that this little child was in the road and was crossing the road as the motor lorry came on the scene there can be only one reasonable inference to draw in my opinion from the fact that an accident did occur, and that is that this motor lorry crossed into the main highway of this village at too great a speed and because the driver of it took this risk he was in my view negligent. I would therefore allow this appeal with costs here and in the Court below and remit the record to the High Court of Uganda for determination of the amount of damages which can properly be assessed to the second appellant. I would add that it will be competent for the High Court to impose such terms on the first appellant as it sees fit, in order to ensure that the damages awarded shall enure for the benefit of the infant appellant.

SIR DAVID EDWARDS, C. J. (Uganda).—I agree with the judgment of the learned President and with the orders proposed by him. I would only add, on the general question of negligence, that guidance can be gained from the recent case of Daborn v. Bath Tramways Motor Co., Ltd. (1946) 2 All England Reports 333 where Asquith, L. J., said at page 336: "In considering whether reasonable care has been observed, one must balance the risk against the consequences of not assuming that risk, and in the present instance this calculation seems to me to work out in favour of the plaintiff". In the instant case the motor lorry driver took the<br>risk of driving at a steady 25 miles an hour from a side road into the main road of a bazaar area where he was bound to meet pedestrian and other traffic. This was, in my view, too great a risk for him to take.

LOCKHART-SMITH, Ag. Vice-President.—I have had the advantage of reading the judgments which have just been delivered, and I respectfully concur with them and with the orders proposed.

For my part, I do not think that there is, or ever has been, any justification in English Law for suggesting that a child going about unattended should be deprived of any legal remedy on account of the negligence of its guardian in permitting it to wander unattended. In the United States of America, and notably in the States of Massachusetts and New York, such a result has been arrived at, but even in the States these decisions are now regarded as of doubtful authority.

In England, however, as Pollock says, "No English decision has yet been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone". (Tort, 13th Edition, page 490.)

Even as regards cases of injury to a child whilst accompanied by a guardian who is negligent, I have no doubt that the doctrine of identification has nowadays been, as Shawcross says, "exploded". (Motor Insurance, 2nd Edition, page 46.)

I would only add that in my opinion the state of the Common Law as regards the assessment of damages in cases of negligence is unsatisfactory, and that a much fairer basis of assessment is provided by the Law Reform (Contributory Negligence) Act, 1945, of the United Kingdom. I hope that the time is not far distant when consideration will be given to the enactment of a similar measure in Uganda and in neighbouring territories.