Case No.:

AC-REV-314-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Tort—Inevitable accident—proof—positive evidence by defendant required

To establish the defence of inevitable accident in a tort action for negligence, the defendant must wove by positive evidence, not by “hypothetical reasons compatible with innocence,”
(a) that the accident was inevitable by showing the inevitability of the result S Court:
from what caused the accident, or what might have caused the accident if the cause is not known, and
(b) that proper or reasonable care was taken by him in the circumstances of the emergency.

Judgment

                                               (COURT OF APPEAL) *

                          EL HAG MOHAMED AL! v. MIKHAIL FATAHALLA

                                                AC-REV-314-1962

Advocates: Abdel Rahman Yousif ... for plaintiff-applicant

Ahmed Zein El Abdin ... for defendant-respondent

Babiker Awadalla 1. April 29, 1963: —This is an application against the decision by the Honourable Judge of the High Court, Khartoum, dismissing an application to him by applicant against the judgment of the learned District Judge, Khartoum, in CS-465- Khartoum District Court.

The claim is one in tort for damages for injuries alleged to have been caused to applicant’s taxi-cab as a result of a collision with respondent’s car. The facts are as follows: at about p.m. on April 30, I9 applicant, a taxi driver, was driving his car No. 2L 1029 on the main Morada Road from south to north. Respondent was driving his car No. K 4169 on the same road in the opposite direction. Applicant was driving his car on the left side of the road near the north-western corner of the Khalifa Mosque when respondent. in violation of the rule of the road, drove his car on the right side and a collision between the two cars took place.

Respondent contended that the collision was the result of an inevitable accident as at the material time a car, was coming from the hospital road and failed to stop at the halt sign. In order to avoid that car, respondent contended, he had to make a big swerve to the right and could not there fore avoid the collision with applicant. No evidence was adduced by respondent to substantiate his version regarding this third car shooting out from his left side of the road. Nonetheless, the learned District Judge found that the collision was due to a sudden and unforeseen emergency, and therefore was not the result of any negligence on the part of respondent. He accordingly dismissed the action.

In dealing with the application by applicant to him, the Honourable Judge of the High Court said: “The court below heard all the evidence available and inspected the record of a former criminal case and reached its above-mentioned conclusion. It was satisfied that the real cause, which made the respondent deviate from the left and correct side of the road and run against the applicant’s car at the opposite and right side, was the sudden appearance of an unknown car from the hospital road and its unexpected entry into the main road. I agree with the court below that this is the only feasible explanation of how the accident occurred and I also agree that the defendant had used all reasonable diligence in the circumstances.”

It is against this decision that this application is now being made.

In my view this application should be allowed. The rule of “sudden emergency” relied upon by the lea District Judge was no doubt incorrectly applied to the facts of the case because here there was no evidence whatsoever as to the alleged third car shooting out of a side road, It was respondent’s duty to establish that he really did act on an emergency by proving such emergency, and a mere theory or explanation of the accident unaccompanied by convincing evidence would not carry the matter any further. The very statement cited by the learned District Judge from Gibb and Milner, Tridi of Motor Car Accident Cases 47 (3rd ed. suggests this. It says: the mere fact that the driver lost his head would not excuse his negligence unless there was actually an emergency. .

At 28 Halsbury, Laws of England 8i (3rd ed. 1959), it is stated as follows: “To establish a defence of inevitable accident the defendant must either show what caused the accident and that the result was inevitable, or he must show all possible causes, one or more of which produced the effect, and with regard to each of such possible causes he must show that the result could not have been avoided.”

Even the theory, which seems to have at one time been current, that in cases of res ipso loquitur: “The defendant can rebut the case by proving that he was not negligent, even though he cannot prove how the accident happened,” which theory appears to have arisen out of some misconception of Lord Dunedin’s judgment in Woods v. Duncan [1946] A.C. 401, 15 not now accepted. It is a theory which seems to have acquired recognition by Charlesworth, Negligence (4th ed. 1962) but which was no doubt ignored in later cases, e.g., Moore v. Fox & Sons [1956] 1 Q.B. 596.

Charlesworth’s statement of this aspect of the law of negligence was criticized in a review of the book by Stephen Chapman at 73 L.Q.R. 408. Speaking of Moore v. R. Fox & Sons, the reviewer says: “Moore v. R. Fox & Sons merely decided that it is not sufficient to put forward hypo thetical reasons compatible with innocence; defendant must call positive evidence to show that proper care was taken.”

For the above reasons, I am of opinion that respondent failed to adduce before the court below that minimum of evidence which was necessary to tilt the balance in his favour and that the presumption of negligence on his part therefore stands unrebutted. The decision of the Honourable Judge of the High Court confirming that of the learned District Judge, Khartoum, is hereby set aside and judgment given in favour of applicant for claim and costs here and in the courts below.

M. A. Abu Rannat C.J. April 29, 1963: —I concur.

M. A. Abu Rannat C.J. and B. Awadalla j.