J. Green Mbadiwe V. Alhaji Yaya (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—Negligence—Case where onus on defendant.
Appeals in Civil Cases—Findings based on inadequate view of evidence.

Facts

Plaintiff’s case was that his lorry was parked on the left of the road with a light on the load, and that defendants’ lorry struck it from behind. The second defendant (the driver) said, in answer to the claim, that plaintiff’s lorry was stationary on left side of road.

Giving evidence he said that his brakes failed at the top of the hill; that he could not pass to the right of the other lorry because of a ditch, and if he had nc t hit it, he would have hit the gate of the bridge ahead; and that plaintiff’s lorry was a bit across the road, rather that its head was off the road and the rest of it on the road.

The trial Judge held that the plaintiff’s lorry had been badly parked: the defendant driver would have had to go into the ditch on that account; also that the defence of inevitable accident would have been available as the brakes had failed.

There was evidence of a mechanic that a nut was loose, which allowed leakage of the brake fluid. It was a new lorry, but defendant driver put in more brake fluid at the stop before leaving for the bridge.

Held

The accident itself raised a presumption of negligence, and the onus of disproving it was on the defendants, but this they failed to discharge. The fact that the driver had to put more brake fluid in a new lorry ought to have warned him that there was something wrong which he should examine; the admission he made in answer to the claim that the plaintiff’s lorry was stationary on the left of the road, and the defendant driver’s evidence that if he had not hit that lorry he would have hit the gate, went to show that he had room to pass but preferred, to hit the other lorry to having a head-on collision with the gate.

Appeal allowed; plaintiff awarded damages.