DIRECTOR BUILDING, MINISTRY OF HOUSING AND CONSTRUCTION AND ANOTHER

DIRECTOR BUILDING, MINISTRY OF HOUSING AND CONSTRUCTION AND ANOTHER

Vs.

HETTIARACHCHI AND ANOTHER

COURT OF APPEAL
NAWAZ, J.
CA/439/2000/F
DC NEGOMBO 7592/M

Negligence-Motor traffic accident-Res ipsa loquitur-Proof of negligence-Quantum of damages

In a motor traffic accident case, the defendant driver whilst admitting the accident pleaded contributory negligence on the part of the plaintiff. The defendant admitted in evidence that the brakes of his lorry were defective. The District Court held with the plaintiff and awarded a sum of Rs. 150,000 as compensation. The employer of the defendant appealed against the judgment.

Held:

1. The facts of the case qualify for the application of res ipsa loquitur. It is acknowledged that the rule res ipsa loquitur (the thing speaks for itself) is an exception to the rule that in actions for negligence the onus of proof is on the plaintiff. Where the accident could not in the normal course of events have occurred without negligence on the part of the defendant, the rule of res ipsa loquitur applies and the plaintiff discharges the burden merely by proving the accident. In such cases, the accident itself affords presumptive evidence of negligence.

2. The burden on the defendant where the maxim res ipsa loquitur is applicable is not only to give a reasonable explanation but also to show that the specific cause of the accident did not connote negligence on his part. The onus is on the defendant to show positively that there was no want of care on his part such as periodical checks, attending to necessary repairs and doing everything in his power to ensure the mechanical soundness of the lorry. This, the defendant had failed to do and the plaintiff is entitled to damages.

3. The quantum of damages not having been calculated with mathematical precision is no reason to refuse damages provided negligence has been established. The calculation is reasonable in light of the facts and circumstances of the case.

Cases referred to:

1. Byrne v. Boadle (1863) 2 H & C 722
2. Scott v. London & St. Katherine Docks Company (1865) 3 H & C 596
3. Barkway v. South Wales Transport Co Ltd 1950 1 All ER 392
4. Abeypala v. Rajapakse 44 NLR 289
5. The Arnot Lyle LR (1886) 11 PD 114
6. Attorney General v. Valle-Jones LR (1935) 2 KBD 209
7. Admiralty Commissioners v. ss. Amerika LR (1917) AC 38
8. Mersey Docks and Harbours Board v. Proctor 1923 AC 253
9. Colman v. Dunbar 1933 AD 141
10. Barkway v. South Wales Transport Co Ltd (1950) 1 All ER 392
11. Silva v. Pate 2 SCR 71
12. Supramaniam Chetty v. Fiscal WP 19 NLR 129
13. Safeena Umma v. Siddick et al 37 NLR 25
14. Ellor v. Selfridge & Co Ltd 46 Times LR 236
15. Wije Bus Co Ltd v. Soysa 50 NLR 350
16. Cabral v. Abeyratne 57 NLR 368
17. Punchi Singho v. Rogala Graphite Co Ltd 73 NLR 66
18. Subawickrema v. Samaranayake and another [1992] 2 Sri LR 142

APPEAL from the Judgment of the District Court of Negombo.

Vikum de Abrew, D.S.G., for the 1st and 2nd Defendant-Appellants.

Sajeevi Siriwardane for the Plaintiff-Respondent.

Lasith Chaminda for the 1st Defendant-Respondent.

cur. adv. vult.

May 17, 2019

NAWAZ, J.

This appeal raises the tort of negligence upon which the Plaintiff-Respondent (hereinafter sometimes referred to as "the Plaintiff') instituted action against the 1st Defendant, the Director, Buildings Department (2nd

Defendant) and the Honourable Attorney-General (the 3rd Defendant). The Plaintiff averred that he was riding a motorcycle in the direction of Chilaw with his sister-in-law on the pillion around 8.30 p.m. on 29.03.1990, when the 1st Defendant driving a lorry bearing No. 26 Sri 1071 crashed into him in Kochchikade and caused him and his sister-in-law severe injuries. The Plaintiff averred that he was riding his motorcycle along Negombo Chilaw road towards Chilaw, when the 1st Defendant-Respondent driving the lorry who was in the employme

Click Here to Read the rest of this document