From the Court

Brief court decisions on civil wrongs with Safi Jimba

Inevitable Liability

The defence of inevitable accident, though not specifically pleaded, is open to a defendant under a plea of no negligence.

Where the plaintiff establishes a prima facie case of negligence but the defendant is wrongly prevented from making a  defence of inevitable accident, a new trial will be ordered.

  1. Jacob v, F. Bandoe

(1955) 16 W.A.C.A. 3

Appeal Ct. (Freetown) – Foster Sutton P., Coussey J. A. and Luke  J.

The plaintiff sued for damage for negligence. He had hired the defendant’s car, which was being driven by the defendant’s driver when, suddenly and for no apparent reason, the car left the road on an incline and the plaintiff was injured. The defendant denied negligence but did not plead inevitable accident as a defence. When defendant’s counsel sought to ask the plaintiff questions about the steering gear not operating, to file a defence of inevitable accident, the judge ruled that he could not ask them, as inevitable accident had not been pleaded, so that the defence led no evidence to plead inevitable accident. The judge said in his judgement that his ruling had been a mistake and that he had taken inevitable accident into account before giving judgement for the plaintiff. The defendant appealed.

Coussey J. A.:

“In the course of his judgment, the learned judge referred to Rumbold  v. London County Coucil ((1909) 25 T.L.R. 541),  which decides that the defence of inevitable accident  need to be specifically pleaded and is  open to a defendant under a plea of no negligence and the learned trial judge remarked that in coming to his decision he had therefore taken this line of defence into consideration. But the fact remained that, governed by the ruling  reference to above, the defendant did not lead evidence to establish inevitable accident.

At the trial, the position  was that the plaintiff, having established a prima facie case of negligence, the onus was on the defedant to prove inevitable accident. He has to show that the cause of the accident was one he could not  avoid. ‘If he cannot tell you what the cause is, how can he tell you that the cause was one, the result of which he could not avoid?’ per Lord Esher M. R. in The Merchant Prince {(1892) P.179, at 188}, a case of the steam steering-gear getting jammed.

To sustain this defence, a defendant must show what was the cause of the accident and show that the result of that cause was inevitable, or he must show all the possible causes, one or other of which produced the effect, and must further show with regard to any one of these possible causes, that the result could not have been avoided (per Fry L. J.).

But in his judgement, the learned judge commented adversely to the defendant upon his failure to call evidence as to the condition of the motor car before or immediately after the accident  to determine whether it could have been prevented by the exercise of reasonable care, and this without permitting such evidence to be called at the trial… In the circumstances, the court is compelled to order a new trial.”

Foster-Sutton P. and Luke J. concoured.

To be continued

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