Case No.:

(HC-Revision-515-58)

Court:

The High Court

Issue No.:

1960

Principles

·  Negligence—Duty of care owed to pedestrians—Standard of care required of drivers in the Sudan—Contributory negligence

·  Damages—Quantum of damages—Pain and suffering—Physical disability—Loss of expectation of happiness

The plaintiff was crossing a main road at nigot hen the defendant approached driving his car at a speed in excess of the limit. On seeing him the defendant ble his horn, but did not slow down until he was about twenty-one paces away, with the result that he was unable to pull up before hitting the plaintiff, who was seriously injured. In an action for negligence the District Judge, Fligh Court, Khartoum, found that the defendant was negligent and awarded £S.5,148.888m/ms damages to the plaintiff. On revision the Province Judge. Khartoum, heard the evidence of the three main witnesses and
Held: (i) That as a matter of law then standard of care required of drivers in the Sudan is greater than may be required in other countries.
(ii) That in the circumstances the defendant was in breach of his duty of care to the plaintiff, and the plaintiff was not contributorily negligent.
(iii) The assessment of general damages by the lower court was too high and the total amount was accordingly reduced to £S.I,388.888m/ms with costs.
Khartoum Municipal Council v. Cotran (1958) S.L.J.R. 85 considered.

1

Judgment

.                                                                                           

(HIGH COURT)

MAGZOIJB MUSTAFA FL TINAY v. HASSAN MOHAMED HILMI

(HC-Revision-515-58)

Revision

Advocates: Abdin Ismail… for plaintiff

                   Abdulla El Hassan….for defendant

February 21, 1960. Osman El Tayeb J. : —This is a case of a claim for damages for personal injuries causedin a road accident. The issues were whether defendant was guilty of negligence, whether plaintiff was guilty of contributory negligence, and the assessment of damages. In his judg ment the learned District Judge, without stating the details of the accident, decided in a hazy way that defendant was negligent, and awarded plaintiff the whole sum of £S.5, 148.888m/ms, by way of special and general damages that plaintiff claimed.

In order to have an opinion of the evidence from which the details of the acident can be seen, I heard the three main witnesses in the case. Plaintiff, defendant and the policeman who inquired into the case. Plain tiff is unable to give a detailed statement as to what had happened, he said that he could not remember whether he was on the paved road or outside it when he was knocked down.

Turning to the evidence of defendant and the policeman I can make out the facts that I shall narrate:

On September 9, 1956, in the evening at about 10.45 p.m., plaintiff was driving his car from Omdurman to Khartoum, and when he was on the part of the road opposite El Mutamar Secondary School, his car went out of order. He stopped by the east side of the road, and intended to go back to Omdurman market to collect a mechanic to repair it. He had to wait for a car going in the opposite direction to take him. This necessarily caused him to cross the road and stand on the other side, as the cars going in the opposite direction, when they stop to take him would stop on that side, the left side of the driver. Plaintiff stood on that side for a time, perhaps he stayed for a little longer than he was expecting without a car coming to him. It was a time of light traffic. For this or for some other reason, plaintiff wanted to cross the road back to his car.

At the same time defendant was on the road driving his Volkswagen car from Khartoum to Omdurman. As he was approaching, he saw plain tiff walking on the road to cross it. Defendant blew the horn; plaintiff turned his face towards him, made a little retreat and then proceeded to cross the road. Defendant continued driving and when he was only twenty-one paces from plaintiff he applied the brakes, but it was too late to avoid plaintiff and he knocked him down. The marks of the wheels were visible on the road for the said distance, according to the evidence of the policeman.

The’ accident took place at the centre of the road. The width of the paved road is twelve paces, and the traffic moves in this width. Defen dant’s car, as it stopped just after knocking down plaintiff, was found in this position: five paces from each side to the end of the road, and the width of the car itself is two paces. It swerved a little to the right to come to this position. It was not driven to the extreme left, before the accident the left side of it was four paces from the edge of the road.

It is submitted on behalf of plaintiff that defendant was not exercising due care and attention towards plaintiff, who was a person on the road, and that defendant was driving with excessive speed. It is submitted on behalf of defendant that he had exercised the due care and attention required from him in the circumstances, and that he was not driving with excessive speed and that the accident was wholly due to plaintiff’s negli gence. In the alternative, it was submitted that plaintiff committed contributory negligence.

It is clear that there is a duty owed by the driver of a vehicle to persons using the road, to exercise due care and attention against causing injury to them. That due care and attention must be reasonable in the circumstances; to behave in the way a reasonable and prudent man would do.

A reasonable man will keep a sharp lookout on the road in front of him. When he sees a person on the road, whether that person is crossing or standing, he has to remember his duty to take care towards that person, to take precautions to avoid causing injury to him. He will blow his horn and draw the attention of that person, and will start decreasing his driving speed, so that as he approaches that person, he will be in control of the car to stop it within a short distance or to turn it to this side or the other.

In my opinion this is the conduct of a reasonable man in the Sudan. The roads are not well lighted, no pedestrian crossings are made, members of the public are comparatively careless in their walking across and along roads, no kerbstones and footways are made for pedestrians, the vehicles are not well maintained, the drivers on the whole are not very well experi enced, etc., etc. Thus it appears that the standard of care required from a driver in the Sudan is a little greater than may be required in other countries. The standard of care and its degree in the prevailing circum stances is a matter of law, but whether that degree has been attained in each particuiar case is a matter of fact.

The question in the present case is whether defendant attained the degree of care required in the circumstances of the case. In the first place it appears that defendant was driving with speed in excess of the lawful speed limit prescribed by regulation. That speed limit is 30 m.p.h. He himself said that he was driving at 30 m.p.h. He pulled up just before the accident and he stopped at a distance of twenty-one paces (about twenty-one yards or sixty-three feet). For a car with normal brakes—as the brakes on the car of defendant were—this is too long a distance for pulling up from a speed of 30 m.p, h. At the latter speed a vehicle can pull up in a distance of not more than ten yards. Excess of speed beyond that prescribed by the Regulations, apart from the fact that it constitutes an offence, is evidence of negligence.

In the second place defendant was not keeping a proper lookout to the road. The road was a straight and open one. Defendant could have seen plaintiff as far as his lights could go. This is a distance of about one hundred yards. Defendant said that when he first saw plaintiff, he saw him on the paved road wishing to cross. Defendant did not slow down to give way to plaintiff to cross. He pushed on with that excessive speed, and he only pulled up when it was too late. He would have pulled up within reasonable distapce or time to avoid the accident, if he was keeping a proper lookout.

It is believed, according to the evidence of defendant, that as defendant was approaching he blew his horn and plaintiff looked at him and retreated, then proceeded to cross, and so he knocked him down at the centre of the road.

From this and in the third place, defendant saw plaintiff already crossing road, crossing, aaid as the car was approaching with excessive speed, the situation of danger brought about confusion in plaintiff, so that he either stopped or moved about trying to give way to the oncoming car. In my opinion defendant did not exercise and attain the standard of care required in the circumstances of the case and so it must be held that he was negligent.

Some reference was made by the learned advocate to some English cases on the subject. I said before that the standard of care required in the Sudan is greater than that ir other countries. I wish to state something here by way of contrast. The English law differs as to whether’the pedes trian is on a crossing or not. To a person on a pedestrian crossing the standard of care owed is very heavy. He is “allowed free and uninter rupted passage.” See Bailey v. Geddes [1937] 3 All E.R. 671 (C.A.) and Upson v. L.P.T.B. [1949] 1 All E.R. 6o (H.L.). On the other hand a person crossing a traffic road at a place not regulated to be a pedestrian crossing takes a great risk and he himself must exercise reasonable care not to interrupt the traffic or cause embarrassment to car drivers. I mean to say that the standard of care required to be exercised by a driver must be one similar to that exercised in England at pedestrian crossings.

Defendant pleaded contributory negligence, that plaintiff did not exer cise reasonable care to avoid the accident. It is not true that plaintiff suddenly appeared before the car. He was crossing and defendant saw him froim a distance—a long distance—crossing, then it was for defendant with sufficient opportunity to avoid him. Plaintiff retreated and then advanced, but this did not change the situation. Plaintiff had a right to cross the road at the point, he was reasonably careful, he started to cross when he saw the oncoming car a long distance away, that he could have crossed in good time, but for the, negligent driving of defendant by driving in excessive speed, he was overcome.

I come to the question of assessment of damages. Plaintiff claimed £S.148.888m/ms by way of special damages, being loss of pay during the period he was under treatment and not attending to his duties, and hospital stoppages. This item of damages needs no argument. The difficulty is about the general damages for (1) pain and suffering, (2) physical disability, and (3) loss of expectatãon of happiness. For those plaintiff claims the sam of £S.5,ooo.

The injuries sustained by plaintiff are put in the report of the Senior Surgeon, Ministry of Health, as follows:

(1) Compound fractt of the lower third of left tibia and fibula.

(2) Fracture of the lower jaw with loosening of teeth.

(3) Multiple minor wounds and bruises in lower lip, face, scalp, fore head and knees.

He was discharged from hospital on December 15, 1956, and remained on the sick list under treatment as an out-patient until March 17, 1957, after which he started to do light work.

He has now completely recovered. As a result of the above injuries he has a permanent disability due to:

(1) A fractured jaw:

a-derangement of occlusion of jaw;

b-loss of upper right first and second premolars;

c- loss of upper right central incisor.

(2) A fractured left leg:

a- stiffness of the left knee joint, which is painful on movement;

b- some degree of malunion of the fracture;

c- general wasting and weakness of the left lower limb;

d- stiffness—pain of left ankle joint.

The permanent disability is approximately 40 per cent.

Plaintiff is a senior schoolmaster in the secondary schools and aged about thirty-six years in the year of the accident. The accident was very violent; he was under grave pain and suffering at the time and during the opera tions that were made on him. It must first be pointed out that the Work- men’s Compensation Ordinance is not applicable to this case, because the liability under it is statutory, while here it is based on negligence.

I find some resemblance between this case and the case of Khartoum Municipal Council v. Cotran (1958) S.L.J.R.85 with regard to the question of damages. In both cases there was fracture of the left leg. The injuries were healed leaving permanent disability of 70 per cent, to 75 per cent, in the case of Cotran and 40 per cent, in the present case. Against this the physical pain and suffering in the present case was apparently greater, because here the cause of the injury was a road accident caused by a moving car and there it was a fall in a drain while the injured was walking slowly.

The Court of Appeal in the case of Cotran assessed £S.500 for pain and suffering and £S.1,ooo for loss of amenities of life, etc. Looking at the position of plaintiff, the injuries he suffered and the above precedent I find that the sum of £S.5, 000 awarded by the court below is too much.

The learned counsel for plaintiff assessed the sum to which plaintiff is entitled for pain and suffering to be £S.24o. This he based on the English practice of paying the wages over again. I accept this sum. But for the loss of happiness and amenities of life I award plaintiff the sum of                    £S.1, ooo. The total damages are £S.i, with costs.

The decree of District Judge, High Court, dated December 10, 1958, is set aside and decree on revision is to pass for the above sum with costs pro rtita in this court and the cout below.

(Order accordingly)