(COURT OF APPEAL)

SUDAN SAFARI & co. v. BAYCHAND PREMCHAND

AC-REV-426-1968

Principles

  Carriers—Private carrier of goods—Bound to take due and proper care of the goods entrusted to him

  Carriers—Private carrier of goods—Liable for his own and for his servant’s negligence

  Negligence—Act of God—Occurrence must be due to natural causes and not to a human agency

 (i) A private carrier who carries goods on occasions, or under special con tract, is a bailee of the goods and is bound to take due and proper care of the goods entrusted to him.

(ii) A private carrier for hire or reward is liable for his own and for his servant’s negligence which is committed in the scope of his employment.

(iii) An Act of God is an act of nature unaccompanied by the agency of man.
 

Advocate: Anwar Adham for the applicant

Judgment

B. M. A. Baldo 1. July 30, 1969 : —The applicant, Sudan Safari (first defendant) concluded a verbal agreement with respondent, a merchant of Juba, on August I, 1962, whereby he undertook to carry respondent’s goods from Juba to Kapiota by lorry for a hire of £S.42.500m/ms. On the way from Torit to Kapiota at evening time an accident occurred and most of the goods were lost. Respondent claimed £S.1702.960m/ms. being value of lost goods and an interest of 9 per cent. on same, and £S.70.000m/ms. for other losses. Mitchell Cotts & Co., were joined as second defendant being agents of London Assurance Co., with whom the lorry is insured. The learned District Judge, Juba, finding applicant driver negligent passed judgment in favour of respondent as follows:

£s.1,627.940m.ms.  Value of goods lost.

£s.25.000m/ms.       Value of lost personal belongings of respondent agent.

£s.60.000m/ms.       Value of canvas lost.

£s.75.000m/ms.        Fees and costs.

£s.1,787.940m/ms.

Judgment has also been entered against second defendant to indemnify applicant with costs.

In revising this judgment His Honour Province Judge, Southern Provinces, dismissed a similar application and quashed the decree and order of the lower court against second defendant, and ordered that first defendant pay revision costs of £S.50.210m/ms.

Applicant is now challenging the order of His Honour the Province Judge. The crucial point in this affair is whether applicant’s driver is negligent or not? and whether the accident is due to an Act of God? It is important to deal with the status of applicant first. Sudan Safari as a tourist company is, of course, a common carrier since carrying passengers is one of its main objects. But in this particular case Sudan Safari is a private carrier as it carried respondent’s goods under a special contract. A private carrier carries goods on occasions or under a special contract. He is a bailee of the goods, and he is bound to take due and proper care of the goods entrusted to him: 4 Halsbury’s Laws of Eng land (3rd ed., I9g p. 134. Had applicant discharged that duty of care? The accident took place at the beginning of August, 1962, at heaviest rainfall, especially in Eastern Equatoria Province where floods are of common occurrence. Applicant’s driver started hi journey from Torit at day time for Kapiota, he was described as conscientious and careful, stopping here and there every now and then, checking every risky bridge or part of the road. It happened that he passed by a bridge full of water during the day, he stopped for three hours, placed stones on the bridge under the water until the water went down, and then he crossed safely. In the evening of the same day, applicant’s driver came to a similar bridge covered with water situated at the end of a loop in the road at low ground. The witnesses prayed the driver to stop, he assured them that it was safe, and proceeded with the front tyres under water. The lorry came to a standstill at the middle of the bridge which is 8 meters long and 2 1/2 meters in width. All of a sudden a flood of water washed the car off the bridge, overturning it, and most of the goods and other property were lost. All this is no doubt due to the recklessness of the driver who, after realizing the danger, went into it. In such circumstances and during the dark a careful driver would never move an inch; he ought to spend

the night instead of taking the risk, or at least wait for the water to fall down, do his usual careful checking and then cross. The driver is under a duty to take care of the property in his car. The degree of care is “that which is reasonable in the circumstances of the particular case.” Negligence is failure to exercise that reasonable degree of care. The driver is no doubt negligent, and his negligence is the sole cause of the accident, and the damage of the goods.

Moreover, this accident speaks for itself, as they say, and it is there fore, a typical case where the principle of res ipsa loquitur can be invoked. In the English case Halliwell v. Venables (1930) 99 L.J.K.B. 353 the driver of a vehicle is held to have sufficient control over his vehicle and its surrounding circumstances.

A private carrier for hire or reward is liable for his own and for his servant’s negligence. Applicant is liable for the torts committed by his servant within the scope of his employment.

The learned advocate for applicant’s contention is that the accident is due to an Act of God. A defence which it is difficult to establish. A carrier is not responsible for the consequences of Act of God. The conception of Act of God has been strictly defined in Greenock Corporation V. Caledonian Railway Co. [1917] A.C.556 “As an act of nature unaccompanied by the agency of man, which no human foresight could anticipate, and of which no reasonable man could be expected to guard against.” As is quite clear this defence is independent of negligence, and it will not succeed in a case like this where the driver’s negligence has been established. Even if we assume that no negligence is proved on the part of the driver, yet the defence of an Act of God will not succeed as it is evident that the accident was mainly due to the act of the driver rather than to an Act of God.

As to the measure of damages in such a case, the general rule is that where goods are destroyed or lost owing to the negligence of the carrier or his servant the value of the goods is recoverable. The lower court has based its judgment on this principle, and it is not part of the subject of this application.

The application is, therefore, summarily dismissed.