Case No.:

(HC-CS-379-1959)

Court:

The High Court

Issue No.:

1960

Principles

·  Negligence—Road accident—Sudde,} failure of brakes due to latent defect—Liabjljtt

Although driving a car with defective brakes normally constitutes negligence, where the cause of an accident is the sudden failure of brakes occurring through no fault of the defendant he ill not be liable in an action for negligence.

Judgment

(HIGH COURT)

EL AWAD MUSTAFA v. PANAYOTIS GEORGE KARKANIS

(HC-CS-379-1959)

Action

Advocates: M. A. Mahgoub… for plaintifi

                   Emile Kronfli……… for defendant

July 30,1960. Osman el Tayeb J. : —In this case the plaintiff, the father of a girl by name Nagat el Awad Mustafa, is claiming damages for the death of Nagat that was caused by defendant by knocking Nagat down with a car that he was driving. It was on October 6. 1958, at about 5 p.m. in Omdurman at the road connecting the Murada and the River Road, near the Murada suk and between the two public gardens at el Murada, that defendant while driving his car knocked down Nagat. She was uncon scious and was carried to Omdurman Hospital where she died after some minutes, suffering from the injuries that she sustained.

Nagat came out from the garden to the south of the road, she was carrying a basket full of grass on her head with her hands stretched up holding the basket. She vias crossing the road to go to her home on the other side. She started going directly across, and then changed her course to cross diagonally. At the time defendant was approaching her. He tried to pull up but the brakes were ineffective, they suddenly failed. The car became uncontrollable and the accident was inevitable. He was driving on the le oi the road and he knocked down the girl as she was on that left side of the road walking in front of the car. The girl was carrying the basket on her head, and as she was young, aged about nine years, she was unable to take any care of herself.

It is not proved that defendant was driving with excessive speed. PW. 5 cannot be believed as he said he has no experience in driving. To the contrary the car was accelerating after a halt at the crossroads tI was not more than 30 to 50 metres from the place of the accident. ThIs is not a sufficient distance to allow the car to attain high speed. There is nothing else except that the brakes of the car were ineffective. The defendant says that they failed suddenly. I believe the defendant, as he was a good witness. The sudden failure of the brakes was the cause of the accident.

Can the sudden failure constitute negligence on the part of defendant? lt is negligence to drive a vehicle with defective brakes. But can a sudden failure occur without the brakes being defective in the course of the running of the car? It seems that this is possible. No technical evidence was brought on this point to make it sufficiently clear. The evidence available proved that defendant started driving that car from Khartoum No. 2 passing through Khartoum main market and crowded streets, with many traffic halt signs, crossings and islands, and during all ‘that, until the last halt, which was some 30 to 50 metres from the place of the accident,the brakes were functioning properly. I find that defendant was driving a car with efficient brakes and that at the time of the accident they suddenly failed by reason of some defect in the mechanism of the car that was not known to defendant. In the circumstances defendant was not negligent.

Had defendant been found negligent, the damages should be a small sum of about £S.50-on the view that the measure is the future prospect of pecuniary loss. Case is dismissed, with no order as to costs as plaintiff is suing in forma pauperis.

(Judgment for defendant) *

Reversed on appeal (AC/App/29/1960) be reported (1961) S.L.j.R.—On the following grounds: (i) the use of foot brakes is not the only means of avoiding an accident; (ii) there was no evidence on which to base any finding that deceased had been contributorily negligent; (iii) damages should have been assessed on the analogy of the Law Reform (Miscellaneous Provisions) Act, 1934. Although the decision of the Court of Appeal does not affect the principle stated in the headnote, the authority of the High Court decision is obviously weakened. Ed

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