Sesay v Davies, 1972-73 ALR S.L. 28

5 10 15 20 SECTION 5 THE AFRICAN LAW REPORTS The appeal fails on all four grounds and is dismissed with costs. Appeal dismissed. SESAY v. DAVIES High Court (Agnes Macaulay, J.): February 11th, 1972 (Civil Case No. 46/70) (1] Evidence-burden of proof-negligence-defence of inevitable accident- burden on defendant to show accident inevitable: An inevitable accident occurs where a person, in doing an act which he lawfully may do, causes damage without either negligence or intention on his part; the burden of proving that something happened over which he had no control, lies on the defendant or on the person setting up the defence of inevitable acci- dent (page 31, line 28- page 32, line 2). [2] Road Traffic-speed-proper speed-duty of driver to travel at speed which is reasonable in circumstances: It is the duty of the driver of a vehicle to travel at a speed which is reasonable in the circumstances; the nature, condition and use of the road, and the amount of traffic should be considered (page 31, lines 2-14). [3] Tort-negligence-inevitable accident-burden of proof-burden on defendant to show accident inevitable: See [1] above. [ 4] Tort-negligence-inevitable accident-causing damage without negligence or intention during lawful act: See [ 1] above. 25 The plaintiff brought an action against the defendant to recover special and general damages for negligence. The plaintiff was travelling in a car driven by the defendant when it was involved in an accident injuring the plaintiff. The accident occurred as the defendant was negotiating a curve in the 30 road. It was not a built-up area and the curve was not blind or sharp. An animal suddenly dashed on to the road and as the defendant tried to avoid it and a heap of stones which was in his lane, the car somersaulted. The plaintiff contended that the defendant was negligent in that 35 he was driving fast and should have slowed down at the curve, but in fact there was no evidence to show the defendant's speed or whether he did slow down. The defendant contended that the accident was caused by the presence of two unexpected obstacles on the road, and was 40 unavoidable. The plaintiff's claim was dismissed. 28 SESAY v. DAVIES,l972-73 ALR S.L. 28 Mrs Harding for the plaintiff; Minah for the defendant. AGNES MACAULAY, J.: H.C. The plaintiff's claim against the defendant is for damages for negligence, injuries sustained and special damages as contained in the statement of claim. According to the plain tiff Marie Sesay, on April 6th, 1969 the plaintiff left Freetown for Makeni in a car, registration No. C9862, driven by the defendant. On their way back to Freetown, about four miles from Makeni the car was involved in an accident. She claimed that they were approaching a curve and it appeared as if there was a heap of stones, it appeared also, she said, as if the brakes were applied and then the car skid­ ded. She claims the car was travelling at a very fast rate and then it skidded and somersaulted and she found herself underneath it. Eventually she was admitted to the Magburaka Hospital for 28 days. Later on she returned to Freetown and continued as an out­ patient for another 28 days, paying visits twice a day to hospital. After that she paid daily visits to the hospital as an out-patient and finally visits on alternate days. These visits she said started on May 5th, 1969 and continued until September. The plaintiff further went on to tell the court that she suffered from fractured ribs and considerable pain. She claims that she is a verbatim reporter and that her speed deteriorated after the accident and that as a result of the accident she cannot now wear a new brassiere as this could cause her considerable pain. As regards her special damage she paid Le29 for her hospital bills, for food and nourishment another Le84 and for transport to and from the hospital another Le268. In cross-examination she admitted that she saw the heap of stones on a curve in the defendant's lane but she could not say whether the accident occurred when the defendant was trying to avoid the heap of stones, because by the time she saw the heap of stones the accident had occurred. Apart from the plaintiff, another witness who was present when the accident took place gave evi­ dence before this court. He had a slightly different story to tell the court. He said that he travelled in the vehicle with the plaintiff, the defendant and the defendant's wife from Freetown and that he too was in the vehicle when the accident occurred. He said that as they were travelling he saw something like an animal which was about two feet in height. He said that the defendant tried to avoid the animal and then drove over a heap of dirt on the road and the 29 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS car somersaulted. Although the defendant he claimed was driving fast he could not tell at what speed he was driving. In cross­ examination he said the defendant tried to avoid the animal which had suddenly jumped on to the road and that he struggled with 5 the vehicle until he got to the heap of stones. The animal he said came from the right and the heap of stones was on the defendant's lane. The distance between the animal and the heap of stones would be about 20 yards. All this he said happened on a curve. The animal he further said tried to cross the road with some speed. 10 The next witness for the plaintiff was Doctor Egerton Fashole Luke. He informed the court of the injuries sustained by the plaintiff and the ensuing results. Finally the defendant himself gave evidence before the court. His evidence was as follows: He claims that he was travelling from 15 Makeni to Freetown on a very rough road and as he was negotiating a curve an object suddenly dashed from his right to his left, and in trying to avoid the object he stepped on his brakes and because of the roughness of the road the car finally skidded and landed on the left hand side of the road. The object he said was a wild animal 20 and apart from the object there was also a high heap of stones on the curve in the middle of the road. He was driving between 30 and 35 m.p.h. and this was not a built-up area. He also admitted that the plaintiff sustained injuries as did his wife and both of them were admitted at the Magburaka Hospital. In cross-examin- 25 ation he said it was impossible for him to have avoided the animal as it suddenly dashed on to the road. He said that he avoided both the animal and the heap of stones and he somersaulted as a result of this; both the animal and the heap of stones he claimed were dangerous. He denied driving fast on that day or that there was 30 any negligence on his part. At the close of the cases for the defendant and the plaintiff both counsel addressed the court. Mrs. Harding for the plaintiff proceeded to tell the court that the defendant on approaching a curve did not slow down or check; of course there is no evidence 35 of this on either side as none of the witnesses gave any evidence of it. She further contended that the defendant was driving fast. What evidence do we have of this? The plaintiff could not tell how fast the defendant was travelling, and the second witness for the plaintiff said in evidence that he too could not tell how fast the 40 defendant was travelling as he did not look at the speedometer. It is admitted on all sides that this was not a built-up area. 30 SESA Y v. DAVIES, 1972-73 ALR S.L. 28 H.C. I refer to Charlesworth on Negligence, 3rd ed., at 90 (1956), which states as follows: "It is the duty of the driver ... of a vehicle to travel at a speed which is reasonable under the circumstances. In determining what is reasonable, the nature, condition, and use of the road in question, and the amount of traffic ... [must] be 5 taken into consideration." In built-up areas it would be negligence to exceed certain speed limits. It is also stated in the same para- graph that a driver must slow down before a blind or sharp curve. In this case Mrs. Harding contended that the defendant did not check or slow down on approaching the curve where it is again 10 admitted by all parties that the accident took place. Again we have no evidence that the accident took place on a blind or sharp bend, in which case the defendant would have been obliged to slow down if in fact he was travelling fast (the Highway Code quoted. in Charlesworth on Negligence, 3rd ed., at 90 ( 1956) ). She also 15 claimed that the defendant drove over a heap of gravel and the car somersaulted. Her own witness said: "I saw something like an animal; it was two feet in height. The defendant tried to avoid the animal and drove over a heap of dirt and the car somersaulted." In cross-examination the witness also said the heap of dirt was on the 20 land where the accident occurred. The defendant tried to avoid the animal which had suddenly jumped on the road, and he struggled with the vehicle until he got to the heap of stones. The animal came from the right and the heap of stones was in the defendant's lane. 25 Because of the evidence adduced, Mr. Minah for the defendant contended that no culpable conduct could be attributed to the defendant-it was an inevitable accident. What then is an inevitable accident? The definition is given in Charlesworth on Negligence, 3rd ed., at 54 7, para. 886 (1956) and it is as follows: "Inevitable 30 accident is where a person, in doing an act which he lawfully may do, causes damage without either negligence or intention on his part." The burden of proof of inevitable accident is upon the defendant or the person setting it up. He must prove that some- thing happened over which he had no control, and the effect of 35 which could not have been avoided by the exercise of care and skill. Where then is the evidence to support the defence of inevi- table accident in this matter? The defendant himself has given an explanation as to how the accident occurred and so has the plain- tiff and her second witness. Before the defence of inevitable 40 accident can succeed the defendant must show what was the cause 31 SECTION 6 THE AFRICAN LAW REPORTS of the accident and show also that the result of the cause was inevitable. We have the evidence of the defendant himself and moreso that of the plaintiff's second witness who said that the accident occurred on a curve and that an animal jumped suddenly 5 on to the road and the defendant tried to avoid it and struggled with the vehicle until he came to a heap of stones which was in his lane and he drove over it. In this case you have the defendant having to contend with two things which should normally not have been on the road, the heap 10 of stones and the animal which jumped suddenly in front of the vehicle. I would therefore say that the defendant did all he could possibly have done to avert the accident but without success. I cannot therefore on this evidence hold that the defendant was negligent. The loss must lie where it falls. Having come to this 15 conclusion I see no point in going into the question of damages raised by counsel for the plaintiff. The action must fail. 20 25 . 30 35 40 The action is dismissed and costs are to be taxed in favour of the defendant. Suit dismissed. TAYLOR v. TAYLOR High Court (Tejan, J.): February 11th, 1972 (Divorce Case No. 26/71) [1) Family Law-divorce-desertion-consists of separation and intention to end cohabitation without reasonable cause or consent of spouse: Deser­ tion is the separation of one spouse from the other, with the intention of bringing cohabitation permanently to an end without reasonable cause and without the free consent of the other spouse (page 37, lines 21-25 ). [2] Family Law-divorce-desertion-constructive desertion-husband's per­ sistent sexual demands knowing wife finds them inordinate or revolting may be grave and weighty matter justifying reasonable wife leaving him: A husband's sexual demands on his wife may amount to constructive desertion on his part if he persists in them knowing that she finds them inordinate or revolting, and they amount to such a grave and weighty matter as to justify a reasonable wife in withdrawing from cohabitation (page 38, lines 9-13, lines 19-24; page 39, lines 7-20). The petitioner sought a decree of divorce from the respondent, his wife, on the ground of her desertion; she cross-petitioned on the ground of his constructive desertion. The parties were married in 1951 and shortly afterwards the 32