Akbar Virji v. Emu Mwakang’ata. Civ. App. 9-D-69; 20/8/69; Georges C.J.

Akbar Virji v. Emu Mwakang’ata. Civ. App. 9-D-69; 20/8/69; Georges C.J.

The plaintiff claimed damages in the District Court from the defendant in negligence. He alleged that the defendant had caused a collision between his motor vehicle and that of the defendant due to the defendant’s negligently driving on the wrong side of the road. The defendant denied negligence and counterclaimed for the damage caused to his own vehicle. His case was that he had been driving on his correct side when he saw the plaintiff approach him on the same side, the plaintiff’s wrong side. Being unable to swerve further to his left as there were pedestrians walking along the road on that side, the defendant swerved to his wrong side of the road. Just, then the plaintiff swerved back onto that side of the road and hit the defendant. Neither side gave evidence to substantiate its claim for damages. The trial court held that there was no justification for the defendant swerving as he did and that the correct cause of action for him, when he saw the plaintiff approaching him head-on, was to stop.

            Held: (1) “If a person negligently drives on a road in such a manner as to place another in a position of peril, then that person cannot complain if the other, so imperiled, in the agony of the moment, takes action which in fact fails to avert an accident. It is not enough by the use of hindsight to conclude that another course of conduct would have prevented the accident. It is, of course, open to the magistrate to hold that the choice made by the defendant was so bad that no prudent driver would have made it. Even in such a case, however, once it is accepted that he was driven to this course by the negligent conduct of another, and then there is a clear case for apportionment of liability for the accident between the two driers, rather than for placing the blame entirely on the one or the other.” (2) A statement in plaint that damage has been suffered is not enough, unless there is an admission in the defence that this is so. In this case, the written statement of defence plainly denied the allegation that the plaintiff had suffered any damages as a result of the negligence of the plaintiff, or at all. It was the duty of the plaintiff, therefore, to lead evidence of the value of his vehicle at the time of the accident, and also of the loss which he suffered by being deprived of the use of it during the period he required to purchase another. In an action for negligence, there can be no finding for the plaintiff unless damages are proved. Damages are an essential ingredient of the tort.” (3) Re-trial before another Resident Magistrate ordered.