1955 Present : Swan, J., and K. D. de Silva, J.

L. E. CABRAL, Appellant, and R. A. ALBERATNE,
Respondent

S. C. 211-D. C. Colombo, 25,212/M

Negligence-Accident-Application of maxim res ipsa loquitur-Onus of proof-Nature of burden on defence.

In a case where the doctrine of res ipsa loquitur is applicable, the burden on the defendant is not only to give a reasonable explanation of the accident in question but also to show that the specific cause of the accident does not connote negligence on his part.

A motor truck belonging to the defendant ran off the road into the plaintiff's house, which was about six feet away from the edge of the road and stood at a bend in the road. Defendant pleaded inevitable accident. He sought to rebut the presumption arising from the maxim res ipsa loquitur by merely stating that the immediate cause of the accident was that the steering-rod got out of its place at the crucial moment. He did not, however, adduce any evidence as to how and why the steering-rod came out of its place. There was no evidence whatsoever that the vehicle was regularly serviced or serviced at all. Even the Motor Car Examiner who examined the vehicle soon after the accident had not been summoned by the defendant to give evidence.

Held, that the fact that the steering-rod went out of control was no answer unless the defendant proved-and the legal burden was on him to prove-that it was no fault of his that the steering-rod failed. The defendant did not discharge, or even attempt to discharge, the burden that lay on him and was therefore liable to pay damages.

Wije Bus Co., Ltd. v. Soysa (1948) 50 N. L. R. 350, not followed.

APPEAL from a judgment of the District Court, Colombo.

H. W. Jayewardene, Q.C., with P. Ranasinghe, for the plaintiff appellant.

A. H. C. de Silva, for the defendant respondent.

Cur. adv. vult.

September 14, 1955. DE SILVA, J.-

This is an appeal from a judgment of the District Judge, Colombo, dismissing the plaintiff's action in which he sought to recover damages resulting from a motor truck belonging to the defendant running off the road into the plaintiff's house and causing damage to it owing to the negligence on the part of the driver of that vehicle. Admittedly, at the time of the accident, this truck was being driven by the defendant's driver acting within the scope of his employment. The house in question stands about six feet away from the left edge of the Kandy-Colombo road when facing Colombo. This building consists of a room, a kitchen and a front verandah and is a few feet below the road level. It stands at a bend in the road. At the time of this accident which was on the 27th June

1951, this house was in the occupation of the plaintiff's tenant Joachim Fernando. Joachim Fernando stated that on the day in question when he was standing on the road about 10 fathoms away from this house he :saw this truck being driven past him at a fast speed. He then heard a crash and saw the front portion of the truck inside his verandah. The front pillars had come down and his father and daughter who happened to be in the verandah at the time were found injured. James Singho who was driving this truck at the time of this accident said that on the day in question he drove the vehicle a distance of 43 miles from Galapitamada and that when he approached this house he found his steering wheel " turned by itself " and that he then applied the brakes. On the application of the brakes the vehicle went down the slope in spite of his attempt to control it. He admitted that the front wheels of the truck entered the verandah of the house. He also stated that when he examined the truck after the accident he found that the steering-rod had come out of the joint where it meets the tie-rod. The defence, in short, is that this was an inevitable accident. The learned trial Judge was of the view that there was no evidence to hold that at the time