Eliyaforo Hosea v. Fraeli Kimaryo, Civ. App. 2-A-67, 15/9/67, Platt J.

Eliyaforo Hosea v. Fraeli Kimaryo, Civ. App. 2-A-67, 15/9/67, Platt J.

Plaintiff was driving from Moshi to Arusha, at night. He was passed by two other vehicles going in the opposite direction; the second vehicle’s lights were not dipped. Plaintiff had dipped his own lights and having done so, was traveling at a speed too great to enable him to stop his vehicle within his reduced field of vision. Before the second vehicle passed him, he saw the defendant’s unlighted Land Rover standing stationary ahead of him. He was unable to avoid it, and struck it. With the result that his own vehicle was irreparably damaged.

            Held: (1)That plaintiff may have had the “last opportunity” to avoid the accident does not bar his action. Although the English rule was formerly to the contrary, the Law Reform (Contributory Negligence) Act 1945 has resulted in the treatment of such cases as matters for apportionment of blame. To the same effect is the controlling statute in Tanzania, the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap. 360. [Also citing Thyssen v. Wakisu Estate Ltd. (1960) E.A. 288; Panesar v. Lochab (1966) E.A. 401.] (2) Leaving an unlighted, stationary vehicle in a road at night is prima facie evidence of negligence. [Citing Hill-Venning v. Beszant (1950) 2 All E.L.R. 115; Harvey v. Road Haulage Executive (1952) 1 K.B. 120; Parish v. Judge (1960) 3 All E.R. 33.] (3) There is no rule of law that a driver must be able to stop within the limits of his lights. [Citing Tidy v. Batham (1934) 1. K.B. 319.] In this case, plaintiff’s action was in fact negligent, under all the circumstances;

This view is supported by the provision of the Traffic Ordinance, s. 44(d), which require him to drive only when he has “a full view of the read and the traffic ahead of him.” (4) Although there are English authorities supporting the allotment of a specific proportion of the damages to be paid to the party creating the obstruction in the road, this case will be decided on its own particular facts. Judgment for plaintiff; damages apportioned evenly between the two parties, so that plaintiff is entitled to one half of his proved damages.