Wije Bus Co., Ltd. V. Soysa

1938     Present : Dias and Windham JJ.

WIJE BUS CO., LTD., Respondent, and SOYSA,
Appellant

S. C. 400-401-D. C. Negombo, 14,042

Negligence-Application of maxim res ipsa loquitur-Nature of burden on defence-Explanation founded on evidence-Burden on plaintiff to prove negligence.

Plaintiff was injured as a result of the bus in which he was travelling being driven off the road and overturning upon impact with a culvert The driver of the bus gave evidence which was accepted that the accident was due to the steering lock giving way when he was about twenty

feet from the culvert. The Judge, however, gave judgment for the plaintiff on the ground that the defence called no evidence to prove that the defect in the steering was not due to any default or negligence on their part.

Held, that the Judge was wrong. Where the maxim res ipsa loquitur applies, the burden on the defence is merely of giving a reasonable explanation of the accident provided it is not conjectured but founded on evidence. Where that is done the plaintiff has to show actual negligence on the part of the defendant in order to succeed.

Safena Umma v. Siddick (1934) 37 N. L. R. 25 considered.

APPEAL from a judgment of the District Judge, Negombo.

H. W. Jayewardene, for defendant appellant in 401 and respondent in 400.

N. E. Weerasooria, K.C., with G. T. Samarawickreme and W. D. Gunasekera, for plaintiff respondent in 401 and appellant in 400.

Cur. adv. vult.

December 10, 1948. WINDHAM J.-

This is an appeal arising upon an action in tort for damages, brought by the plaintiff-respondent, who was a passenger in a motor omnibus owned by the defendant-appellant company and driven by its employee, in respect of injuries sustained by him as a result of the bus being driven off the road and overturning upon impact with a culvert on the road side. The plain­tiff alleged that the accident was due to the negligence of the defendants' driver, and the learned District Judge, finding in his favour on this issue, awarded him damages in the amount of Rs. 2,500. Against this finding the defendant company has appealed, while the plaintiff-respondent has cross-appealed on the ground that the damages were inadequate.

The question in issue on the main appeal is briefly this. The learned District Judge rightly found that the sudden running of the bus off the road was a fact from which negligence on the driver's part might be presumed in the absence of any explanation by the latter as to how the accident occurred. He went further than this, however, and held that the running of the bus off the road east the burden upon the defence of proving that the accident was not due to any negligence on their part. The driver gave evidence that the accident was due to the steering lock giving way when lie was about 20 feet from the culvert which caused the bus to overturn. The learned District Judge accepted this evidence, and found that the accident was caused in the manner stated by the driver, namely, through the steering gear having got out of control. He also made a finding, which in my view was warranted by the evidence

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