(COURT OF APPEAL)

EL SIDDIG ABBAS AND ANOTHER vs.AMNA EL TAYEB AHMED

AND OTHERS

AC-Revision-181-59

Revision

Principles

  Negligence—Duty of core on high way—Overtaking

  Damages—Death of relative—Who may sue

  Damages—Quantum of damages—Appellate Court (Revision)—Grounds for interference with finding of Lower Court

The first defendant’s lorry, driven by his servant (the second defendant) during the course of employment, was proceeding at 70 m.p.h. along a main road when it swerved off the road in order to allow another lorry to pass. It ran on uncontrolled, into a khor, and overturned, killing three persons. In an action by two wives and two children, dependants of one of the deceased the Judge of the High Court, Khartoum Circuit, found for the plaintiffs and awarded £S.1,200 damages, plus costs and court fees. On application for Revision,
Held: (i) That the defendants were liable in negligence, there being no duty to leave the road in order to allow another vehicle to overtake.

      (ii) That these plaintiffs were entitled to recover for pecuniary loss in consequence of the death of the deceased.
              (iii) That an Appellate Court cannot disturb the award of damages by a Lower Court, unless the assessment is out of proportion.
Semble: This principle applies to cases coming on Revision as well as on appeal
 

Judgment

Advocates: Mubarak Zarroug ………..for plaintiffs

                   Ahmed Gumaa …………   for defendants

    8th September 1959 M. A. Abu Rannat C.J.: —The facts are short and simple. On 18th November 1955 at about 6 p.m., second defendant was driving lorry No. K-4815 on the highway road from Wad Hissouna on his way to Um Dubban. The second defendant admits that he was driving the lorry at seventy miles per hour. The evidence shows that he left the main road for a distance of sixteen paces where he fell in a khor and continued for another distance of about sixteen paces where the lorry overturned and killed three of the passengers. The plaintiffs in this case are the dependants of one of the deceased persons by name Ali Fadl El Kerim. They claimed damages for the loss of life of their breadwinner. They are basing their claim on negligence of the second defendant.

    The second defendant explains that while he was driving on the main road, a lorry which was driving behind him blew its horn because it wanted

to overtake him. He then left the main road by swerving to the left, and as there was high grass he did not see the khor and therefore the lorry overturned and caused injury.

     There is evidence by plaintiffs’ witness that the second defendant was in fact racing with another lorry which was in front of him. But even if it is conceded that the second defendant was not racing, he was not under a duty to leave the main road and give way to the other lorry. Furthermore, to leave the road for a distance of sixteen paces and in such a way as to make the vehicle uncontrolled amounts to negligence.

     I have looked into the record of the civil suit, as well as the proceedings of the Criminal Court which came to me on revision, and I am of the opinion that the second defendant was definitely negligent.

   The first defendant is the owner of the lorry, and he himself was riding on the front seat beside the driver when the accident took place. He is therefore liable because the second defendant committed the wrong act in the course of his duty.

   The dependants have shown pecuniary loss in consequence of the death of the deceased and they have furthermore shown that they were expecting pecuniary benefit from the continuance of the deceased’s life. They are two widows and two children.

  As to measure of damages, I do not think that an Appellate Court can disturb the finding of the Lower Court in such an assessment, unless that assessment is out of proportion. The District Judge applied his mind to the correct principles on the assessment of damages and I do not think 1 can say that he was wrong.

   The application is summarily dismissed.

                                                       (Application summarily dismissed)