1963 Present: Sansoni, J., and L. B. de Silva, J.



A. B. C. DE SILVA and Another, Appellants, and A. L. DE
 S. GUNAWARDENA, Respondent

S. C. 246-247/60-D. C. Colombo, 45853/M

Delict-Collision between two motor cars-Negligence-Burden of proof-Presumption of liability arising from ownership of car-Liability of parent for wrongful act of his minor child.

In an action for recovery of damages caused by a collision between two motor cars, the plaintiff, even if he has been guilty of some negligence, is entitled to recover damages if the defendant's negligence was the decisive and effective cause of the collision.

The owner of the car which caused the accident is liable in the absence of any evidence as to whether or not the person who drove it was acting as the servant or agent of the owner. This presumption of liability arising from ownership is applicable even if the driver was a minor child of the owner.

APPEAL from a judgment of the District Court, Colombo.

                     H. W. Jayewardene, Q.C., with W. D. Gunasekera and Sinha Basnayake, for the 1st and 2nd Defendant-Appellants.

                   Colvin R. de Silva with M. L. de Silva, for the Plaintiff-Respondent.

Cur. adv. vult.

May 6, 1963. SANSONI, J,-

      This is an action for damages filed by the Plaintiff against the driver (the ) st Defendant) and the owner (the 2nd Defendant) of a motor car which collided with a car which was being driven by the Plaintiff. The collision occurred at about 8.30 p.m. at the intersection of McCarthy Road and Gregory's Road. The Plaintiff was driving his Vauxhall car EY 4565 along McCarthy Road towards Buller's Road, while the 1st Defendant (a minor at that time) was driving his father's (the 2nd Defendant) Jaguar car CY 3710 along Gregory's Road towards Maitland Crescent. The point of impact appears to have been a little on the Buller's Road side of the intersection and about 18' 6" from where McCarthy Road meets Gregory's Road as one travels from Horton Place.

    The learned trial Judge has held that the collision was due entirely to the negligence of the 1st Defendant and that there was no contributory negligence on the part of the Plaintiff. He awarded the Plaintiff a sum of Rs. 50,000 as damages. He has also held that the 1st Defendant was at

the time driving the Jaguar car as an agent of the 2nd Defendant, and that both Defendants were jointly and severally liable to pay the damages awarded.

     It is common ground that where Gregory's Road meets McCarthy Road the word " Stop " was painted in large white letters on Gregory's Road, on either side of the intersection. Further, the Plaintiff approached the intersection on the right hand side of the 1st Defendant. As the learned Judge has held, it was the plain duty of the 1st Defendant to have given way to the Plaintiff, if necessary by stopping his car on Gregory's Road. He should have made certain, before he entered the intersection, that there was no car entering it on his right hand side, because the Plaintiff had the right of way. The 1st Defendant, as found by the learned Judge, saw the Plaintiff's car approaching the intersection. Under these circumstances the failure of the 1st Defendant to stop and let the Plaintiff's car proceed as it had the right of way constituted negligence on the part of the 1st Defendant.

    Mr. Jayewardene accepted the finding that the 1st Defendant had been negligent. He submitted, however, that the learned Judge should have found the Plaintiff guilty of contributory negligence which disentitled him to recover any damages. He relied most strongly on the Plaintiff's admission that when he arrived at the point where McCarthy Road met Gregory's Road, he drove through the junction without looking to either side. The Plaintiff's explanation seems to be that when he approached the junction he slowed down, tooted his horn but got no reply from any other horn, a