“Failing to prevent an accident” is one of the most often bandied about legal terms that confound people when discussing liability for road accidents. It comes under the rubric of contributory negligence, in the branch of civil law. Oftentimes, those who have been accused of failing to prevent an accident are perplexed why they are being faulted at all. Maybe they shouldn’t be, as the success of the appeal in the following case indicates. (Hemachandra v. Ayoob and Another - SLR - 309, Vol. 1 of 1987 [1986] LKCA 38; (1987) 1 Sri LR 309 (26 March 1986).
The Plaintiff in the District Court was the Appellant in Appeal Court. The Court of Appeal noted the circumstances of the case in this way, in judgement: “The case of the Plaintiff briefly had been that when he was riding this motorcycle along Galle Road from the direction of Fort towards Bambalapitiya this car driven by the Second Defendant emerged from Edward Lane into Galle Road and in attempting to cross the line of traffic to proceed towards Fort, collided with his motorcycle as a result of which he sustained the injuries which constitute the foundation of his claim. The Plaintiff had contended that the proximate cause of this accident was the negligence of the Second Defendant which gave rise to the liability of the latter to make good the damages claimed. The Defendants however had taken up the position that it was the contributory negligence, if not negligence of the Plaintiff, that brought about the accident.”
The primary issue was to determine who was at fault when a driver of a motorcar cut into a main road from a by-lane and passed two rows of stationary traffic, only to crash into a motorcycle when he proceeded to cross the third lane of traffic, which unbeknownst to him, was moving.
The Judges of the Court of Appeal explained things in this way, in judgement: “To put it precisely and with respect to the case before us I think it was the duty of the Second Defendant to have halted his car at the top of Edward Lane before entering Galle Road (without having proceeded up to the centre line as he says he did) and then to have crossed the landside half of Galle Road to enter the seaside half only when it was possible to do so without obstructing the traffic going toward Bambalapitiya, that is, when the landside half of Galle Road was reasonably clear of traffic at this point to permit the Second Defendant to cross this half without imperilling the safety of such traffic.”
The motorcyclist in this case under review was a policeman. When the car abruptly cut in before him, he took evasive action by sharply turning to his right to avoid the car getting in his way, but crashed into the left side lamp of the car nevertheless. The Court of Appeal Bench cited the case vide Martindale v. Wolfaardt ((1)-Negligence in Delict by Macintosh and Scoble, 4th Ed. pp. 288 and 289) and noted, “In such a situation if evasive action of some kind is taken by him (such as what the Plaintiff says he attempted to do here) in my view one cannot find much fault with that or term it contributory negligence even if such action might not have been of the optimum kind that might have been taken had there been the time and opportunity to do so.”
The salient aspect of the case was that the District Court had declined to award the Plaintiff motorcyclist policeman damages on the basis that he contributed to the accident through his negligence.
However, the Court of Appeal took the view that the probabilities are that the Second Defendant drove his car up to the centre line completely blocking the path of the motorcycle which was close to it, thus rendering it necessary for the Plaintiff to move to the right in an attempt to avoid the car.
President’s Counsel for the Respondents contended that the damage being to the left front side of the car points to negligence of the part of the Plaintiff. But the Judges of the higher Court thought otherwise. They decided that such damage is compatible with the Plaintiff having tried to avoid the impact without success, and being hit by the area of the left front headlamp of the car.
A sketch of the circumstances of the accident produced at the trial, they said, supported that view. Most offenders cite contributory negligence on the part of the victim of a road accident, and get away.
The Court of Appeal did not allow that outcome in the case under review, though the DC earlier had allowed it. The DC judgement was set aside.
“I set aside the judgement of the learned District Judge and give judgment for the plaintiff-Appellant as prayed for in his plaint. He will also be entitled to his costs in this court and in the court below,” wrote His Lordship Goonewardena J, ruling in favour of the Appellant.
That was in a civil court. In a criminal action, the legal terminology may be different, though the circumstances under consideration may be similar.
A bus driver, a First Defendant in a subsequent civil lawsuit for damages was charged in the Magistrate’s Court for negligent driving and failure to avoid an accident under the Motor Traffic Act. He pleaded guilty to the second count, i.e., failure to avoid an accident and the first count, i.e., negligent driving, was withdrawn by the police. The details of the charge that he pleaded guilty to, as noted by the Court of Appeal subsequently were: “A cow was coming across the road, the Respondent braked his motorcycle and the toppling happened in front of the Appellant. He had the last opportunity to avoid the accident, but he could not, because he was driving the bus too fast. It was the Appellant who had the last opportunity but not the Respondent. The Respondent cannot be blamed for contributory negligence.”
In short, a motorcyclist encountered a cow crossing the road, and braked his vehicle violently to avoid the animal. However, he toppled and fell, and a bus coming from behind crashed into him. He was hospitalized and had his spleen removed.
On appeal (North Colombo Regional Transport Board, Vs. Aparekkage Wasantha Pushpakumara Perea, CA 977/98 (F)) by the Plaintiff bus driver, Court of Appeal cited the case of Daniel V. Cooray. 42 NLR 422, explaining that, “in cases where the Defendant pleads contributory negligence the inquiry resolves itself in an elucidation of the question as to which party, by the exercise of ordinary care, had the last opportunity of preventing the occurrence.”
It was decided that the bus driver — in much the same way as the Magistrate’s Court had decided he failed to prevent an accident — had contributed to the accident through his negligence.
He had the last opportunity to stop the accident from happening as the motorcyclist had already toppled in front of him. But he didn’t prevent the incident.
The Court of Appeal held with the Respondent, the motorcyclist, and affirmed the DC judgement in his favour.
A sum of Rs. 225,000 was awarded as compensation to the Respondent. Costs of the Court as well as the Court below were awarded to the Respondent.
