ROSAIRO VS. BASNAYAKE

ROSAIRO VS. BASNAYAKE

COURT OF APPEAL
ABDUS SALAM, J
CA 901/2004 (F)
DC (COLOMBO) 21706/M
JULY 4TH 2007

Motor Accident - Damages - Negligence of defendant while driving car - Injuring passenger - Pleading in Magistrate's Court -Is it relevant? - Evidence Ordinance Section 41 (A), Section 41 (A) 2, - Damages under Law of Tort.

The plaintiff instituted action against the defendant-appellant following a vehicular accident alleged to have taken place due to the negligence of the defendant driver - the plaintiff was a passenger in the car. After trial Court awarded Rs. 1,17040/50 as special damages and Rs. 4,956,000/- as general damages. On appeal - it was contended that there was no proof of negligence and that in any event the computation of damages was wrong.

Held:

(1)    The trial Judge has in her order quite correctly taken into consideration the evidentiary value of the order in the Magistrate's Court case - where the defendant had pleaded guilty to the charges of negligent driving of the motor car and failing to avoid the accident complained of.

Per Abdus Salam, J.

"A plea of guilt is most relevant and ought to be taken into consideration in assessing the plaintiffs case and hrther plea of guilt on a charge of failing to avoid an accident by the driver cannot be lightly ignored in considering as to whose negligence it was which caused the accident" - Section 41 (A) (2) - Evidence Ordinance.

(2)    The evidence adduced by the plaintiff, before the trial Judge was such which is capable of giving rise to a reasonable inference

of negligence on the part of the driver of the offending vehicle. The defendant has not been able to negative the allegation of negligence.

(3)    The damages awarded appear to be reasonable and in no way excessive. The trial judge has assessed the damages partly based on the loss of opportunity of the plaintiffs wife to engage in an employment as she has to care for the plaintiff. Having placed the earning capacity of the plaintiffs wife at Rs. 3000/- a month, the trial Judge has fixed damages resulting from loss of employment opportunity to the wife at Rs. 1,116,000/- and arrived at the general damages as Rs. 3,840,000/- + Rs. 1,116,000/- = Rs. 4,956,00d/-. Since the wife was not employed the trial Judge could not have awarded Rs. I, 11 6,000/- as being part of generaI damages resulting from the wife of the plaintiff having to care for the husband.

(4)    Taking into consideration the plight of the plaintiff the trial Judge could have awarded sufficient compensation for loss of comfort, pain of mind and the amount the plaintiff may have to incur to employ someone to care for him in the future. This amount could be reasonably fixed at Rs. 1,000,000/- not on the basis of the wife being deprived of employment opportunities but on the basis that the plaintiff is entitled to such damages to look after himself.

        General damages that should have been awarded is Rs. 3,840,000 + Rs. 1,000,000/- = Rs. 4,840,000/-.

Cases referred to :-

(1) A. W. A. Hemachandra vs. Mohomed Ismail Ayoob - 1986 CALF? 550

(2) Sinniah Nadaraja vs. Ceylon lkanspor? Board 79 NLR (iii) 48

(3) Hollington us. New thorn & Co. Ltd 1943 2 All ER 35

Prasanna Jayawardane with Millinda Gunatilaka for substituted appellant.

Mayura Gunawansa, with Viraj Premasinghe and A. Sathyendran for plaintiff-respondent.

Cur.adv.vult

July 21th 2008

ABDUS SALAM. J.

    This is an appeal from the judgment of the District Court of Colombo dated 1.6.2004, awarding damages to the plaintiff-respondent (hereinafter referred to as the plaintiff) in a sum of Rs. 4,956,000/- and Rs. 117,040.50 as special
damages.

    The plaintiff instituted action against the defendant-appellant  (hereinafter referred to as the defendant) following a vehicular accident alleged to have taken place due to the negligence of the defendant while driving a motor car. The plaintiff who was a passenge

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