[1940] EACA 2

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda, and WEBB, C. J. (Tanganyika).

#### JEAN ROBINSON, Appellant (Original Plaintiff)

# HERBERT LANCELOT BUTTON, Respondent (Original Defendant) Civil Appeal No. 2 of 1940

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

Negligence—Motor collision—Action by passenger against driver.

Appellant, a passenger in a motor car driven by the respondent, was injured when the appellant's car collided with a lorry after crossing a wide major road along which the lorry was proceeding at a fast speed. The respondent's car was proceeding along a narrow side road which crossed the main road diagonally and it was impossible for either driver to see the other's vehicle until the respondent's car had actually emerged on to the main road. Respondent drove his car on to the main road at 20 m.p.h., saw the lorry approaching at as he says about 80 m.p.h. and proceeded across the main road in front of the lorry. He estimated that he could get across with two cars' lengths to spare. The lorry swerved to its left leaving the main road and crushed into the left side of the respondent's car 51 feet from the place where the car had emerged on to the main road. The lorry driver was neither a party nor a witness in the suit. Appellant's claim for personal injuries resulting from the collision was dismissed on the ground that the respondent's negligence had not been proved and the accident would have been avoided if the lorry had not been swerved off the main road. Appellant appealed.

Held $(22-2-40)$ .—That the respondent should have been found negligent in the circumstances.

Appeal allowed.

#### W. A. Shaw for the Appellant.

E. G. Russell for the Respondent.

WHITLEY, C. J.—The appellant appeals against the judgment of Sir Charles Belcher, Ag. J., dismissing her claim for damages for injuries alleged to be caused by the negligence of the respondent when driving his motor car. There is very little dispute as to the facts. The appellant was a passenger in the respondent's car when it was knocked over in a collision on the Bondo-Asembo Road. This road is admittedly a wide major road and it will be convenient to refer to it as the main road. The lorry was driving on the main road towards Bondo. The defendant was driving his car along a narrow side road which crosses the main road diagonally. From the point of view of the lorry driver the car came on to the main road from the right and crossed it diagonally in the direction from which the lorry was coming. A thick clump of bushes at the point where the car emerged from the side road would make it quite impossible for either driver to see the other vehicle until the nose of the car was actually on the main road. From the photographs it would seem that the side road is so concealed by the bushes that the lorry driver would probably not be able to see that there was any side road there at all. The lorry driver was not called as a witness so that we do not know his version of the affair. According to the appellant and her daughter the car was travelling about 20 miles an hour when it emerged from the side road and did not slow down to cross the main road. The respondent says that he was travelling at 20 miles, having slowed down as he came on to the side road from

a previous main road. The appellant described how after the car had got across the main road and entered the continuation of the side road the respondent shouted out "My God, we are for it" and she saw the lorry right on top of them. The respondent in his evidence said that when the nose of the car came on to the main road he saw the lorry approaching some 60 to 80 yards away. He put its speed at nearly 80 miles an hour. He considered that if the lorry continued on its course at the same speed he would be able to get across in front of the lorry with two cars lengths to spare. Accordingly he did not slow down further. He saw the lorry swerve to its left, leave the main road and come across the open ground to the side road where it crashed into the left side of the car. The point of impact was 51 feet from the point where the car had emerged on to the main road. Assuming, as is common ground, that the car was travelling about 20 miles an hour less than two seconds must have elapsed between the moment when the lorry driver first saw the car and the time of the collision. We have no evidence as to why the lorry left the road but I think it not unreasonable to assume that rightly or wrongly the driver of the lorry did this in the hope of thereby avoiding a collision. It is in evidence that the brakes of the lorry were in a very bad condition.

It is common ground that the respondent owed a duty to the appellant to exercise reasonable and proper care. The negligence alleged was: -

- (a) Failing to stop the car before crossing the main road; - (b) failing to sound his hooter; $(b)$ - (c) not signalling to indicate that he was about to cross the main road; - $(d)$ not keeping a proper look out; - (e) failing to exercise due care and control.

The learned trial Judge held that there was no negligence in failing to stop before entering the main road and I agree with that view so far as it goes. He made no finding as to whether or not the respondent sounded his hooter and expressed the view that under the circumstances it made little difference whether he did or not. On the evidence I consider that it would be unsafe to assume that the respondent did not sound his horn. The Judge further held that under the circumstances there was no need for nor point in giving any signal. I agree. He accepted the respondent's evidence that he saw the lorry directly he came out of the side road and that no failure to exercise due care had been proved.

An Appellate Court is reluctant to interfere with the decision of a court of first instance on questions of fact but in a proper case it will of course do so and it seems to me that the learned trial Judge in this case failed to appreciate fully one aspect of the case. It is well established law that if one person by his negligent or careless act puts another person in the position that he has to make a sudden decision to avoid an accident and that other person takes a decision and makes some negligent mistake which he would not have made if he had not been forced into that position the first person will be responsible for any damage caused. Corstar v. Eurymedon (1938, A. E. L. R. Vol. 1, Pt. 2, page 122) and Karmani v. Nairobi Municipality (14 K. L. R. 129). It appears to me that the respondent took an unwarranted risk in emerging from such a side road at a blind corner, with the intention of crossing the main road, at such a speed as approximately 20 miles an hour. He knew that it was the cotton season and that cotton lorries used the road. He should have anticipated the possibility of a lorry proceeding at high speed and have been prepared to adjust his movements accordingly. He should have been driving in such a way that he could either pull up or turn to the left and leave the lorry to continue on its course. By charging across the main road as he did he put the lorry driver in a difficult position. Even assuming that the latter was driving with defective brakes, he had to decide whether to go straight on or deviate either to right or left. For all the lorry driver could tell the respondent might have decided to pull up or to turn left towards Asembo. It seems to me clear that the lorry driver made up his mind, in the split second available to him, that the best prospect of avoiding a collision lay in steering to his left off the road so as to leave the respondent the whole main road in which to manocuvre. Whether in fact it would have been better for him to go straight on is wholly immaterial. He could not read what was in the respondent's mind and he did the best he could. The fault lay with the respondent for driving in such a careless manner as to put him in that difficult position. I accordingly would allow the appeal with costs and find the respondent guilty of negligence and liable in damages. Counsel have very wisely agreed that in the event of the appeal being allowed we should dispose of the case and assess damages. The special damages are agreed at Sh. 2,189. As regards general damages the appellant has suffered considerable pain and will suffer from permanent weakness of the legs. I would allow Sh. 10,000 general damages. The order which I would propose would be that the appeal be allowed with costs here and below and judgment entered for the appellant for Sh. 12,189 and costs.

SIR JOSEPH SHERIDAN, C. J.—I have had the advantage of reading my brother Whitley's judgment, with which I agree. My view is that in the circumstances narrated by the respondent his duty was to refrain from crossing the main road. and that his failure in that duty amounted to negligence. It is provided by Rule 23 of the Traffic Rules, 1928, that "A vehicle approaching a road from a private way or from a road of lesser importance shall proceed slowly and shall give way to vehicles travelling on such road". I am aware that a rule such as this may and should be departed from should such a course be calculated to avoid an accident. McCardie J. in Phillips v. Brittania Hygienic Laundry Co. Ltd. (39 T. L. R. at p. 209) described Motor Car Acts and Regulations as police provisions rather than enactments declaring civil liability, adding: "Thus I think, in the case of a motor car, it may sometimes not only be desirable, but essential, for the purposes of avoiding civil liability temporarily to exceed a speed of twenty miles an hour or to go upon what is prima facie the wrong side of the road. To do so may sometimes afford the only method of avoiding a serious accident." The present case is not one of those the learned Judge had in mind but rather is it in my opinion a case where more than ever there was a duty cast upon the respondent to obey the regulation and give way to the approaching lorry. The general damages I would assess at £500 and the special damages set out in the pleadings have been admitted in the event of liability being established. I would allow the appeal entering judgment for the appellant for Sh. 12,189 with costs in this Court and the Supreme Court.

WEBB, C. J.—I agree and have nothing to add.