Olumuyiwa Faloye & Ors V. Abraham Olaniyan & Anor (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Fatal Accidents Act, 1846, section 4—Claim of damages by dependants.
Tort—Negligence—Defence of inevitable accident—Case where onus on defendant.
Appeals in Civil Cases—Findings based on inadequate view of evidence.

Facts

“Where an accident in the ordinary course of events does not happen when
the business is properly conducted, the accident itself, if it happens, raises a presumption of negligence in the absence of any explanation”: from the
judgment infra.

A lorry, owned by first respondent and driven by the second respondent, going down a steep hill along a winding road, overturned round a corner, and a lady, the mother of the first and second appellants and daughter of the third, was killed under the loads.

The appellants sued claiming damages as pecuniary loss as dependants of the deceased.

The defence was inevitable accident: the driver gave evidence that he was familiar with the hill; that the brake suddenly failed to act and the lorry gathered speed, and the driver could not take his hands off the wheel to try to do anything; that the lorry had been tested about a week before, so the defect in the brake system could not have been revealed by reasonable care; and that the hand-brake also failed. The brakes were not tested after the accident.

The trial Judge held that section 4 of the Fatal Accidents Act, 1846 (which requires a statement of the nature of the claim for damages), was not satisfied; also that the defence of inevitable accident had been made out.
The plaintiffs appealed.

Held

The requirement of the Act was sufficiently complied with by the plaintiffs’ statement in their writ and statement of claim that damages were claimed as pecuniary loss as dependants of the deceased.

Held also: The nature of the accident raised a presumption of negligence, but this the driver failed to rebut. The fact that the brakes had been tested a week earlier did not help the defence; there was no sound evidence that anything went wrong with the brakes. The plain fact was that the driver, who knew the dangerous nature of the descent, failed to take the precaution which a prudent man would have taken before the descent, of changing into a low gear in order not to rely upon the brakes only.

Appeal allowed; case remitted for certain purposes.