Granger v Murphy

JurisdictionBahamas
CourtCourt of Appeal
JudgeGeorges, J.A.,Hogan, P.,Inniss, J.A.
Judgment Date25 Jun 1975
Neutral CitationBS 1975 CA 3

Court of Appeal

Georges, J.A.; Hogan, J.A.; Inniss, J.A.

Granger
and
Murphy

Tort - Negligence — Liability

Georges, J.A.
1

On November 1st, 1971 the respondent was driving her motor car in a northerly direction along Blue Hill Road when she came to a stop near an intersection behind another vehicle which had also come to a stop awaiting an appropriate moment to turn right. As she did so a vehicle ran into the rear of her car pushing it forward against the vehicle in front. She came out of her car and saw that the vehicle which had run into her car was a pick-up driven by the appellant. She asked him what had happened and he replied that his brakes had not held.

2

In due course the respondent sued to recover the damages she had sustained as a result of the collision alleging that the appellant had failed to keep a proper look-out or had failed to apply his brakes sufficiently or at all or in time to avoid the collision or that he had failed to drive at a proper distance behind her car. The appellant denied that he was negligent and alleged that the collision was due to inevitable accident. He averred that though his vehicle had been in a proper mechanical condition prior to the accident the brakes had failed to hold when applied. This happened because the master brake cylinder had broken and as a result there was an escape of brake fluid.

3

In the penultimate paragraph of his judgment the learned judge stated that notwithstanding the label of inevitable accident placed by the appellant upon the case the details of the evidence suggested that he was relying upon what might with greater particularity be termed a defence of some latent defect”. The fact is, however, that if it can be shown that the accident was due to a latent defect in the mechanism which the plaintiff could not by reasonable diligence have discovered, then the accident would indeed have been inevitable. Such indeed was the plea in Winnipeg Electric Company v Geel [1932] A.C. 690 the facts of which bear a striking resemblance to the facts of this case. Perhaps the position is most logically analysed by Lord Greene who stated in Brown v De Luxe Car Services [1947] 1 K. B. 549 at p. 552 :–

“I do not find myself assisted by considering; the meaning of the phrase “inevitable accident.” I prefer to put the problem in a more simple way, namely has it been established that the driver of the car was guilty of negligence.”

4

In this case the appellant's vehicle ran into the respondent's car when it was at a standstill and properly positioned in the line of traffic. This is prima facie evidence of negligence and the burden would, therefore, lie on the appellant to establish that the collision was not due to any negligence on his part.

5

The learned trial judge after a careful analysis of the evidence concluded that the appellant had not discharged the onus of establishing that the failure of the brakes was not due to any negligence on his part. The broken cylinder or brake line was not produced.

6

No evidence was led to show what may have caused the break — whether a latent defect or some other cause which reasonable care could have discovered and prevented. No competent mechanic inspected the vehicle after the accident so that there was no technically reliable evidence as to its condition. The evidence was conflicting and unsatisfactory as to what part of the mechanism had ruptured — whether the master cylinder or the brake line. The service personnel who attended to the pickup were not called so that there was no evidence as to the nature of the maintenance inspection which the vehicle regularly underwent. The only evidence on that point was that of the appellant who said that the vehicle was regularly serviced. Assuming that the evidence of the appellant is accepted that the collision was caused by the failure of his brakes, the conclusion of the learned judge that he had failed to show that this was not due to negligence on his part appears eminently correct.

7

The argument for the appellant, as I understand it, was that since the appellant's vehicle was not a public service vehicle the standard of care required of him was less than that required in the case of such vehicles and that accordingly the high standards prescribed in cases such as Barkway v South Wales Transport Co Ltd. [1950] 1 All E.R. were not applicable.

8

Even if this proposition were accepted it would avail the appellant nothing. He has led no precise evidence establishing exactly what part of the braking mechanism failed or the cause for such failure. He has led no evidence detailing the type of inspection carried out in the periodic maintenance services of which he testified. One is left therefore in doubt as to precisely what was the defect which caused the brakes to fail and similarly one cannot tell whether failure to discover the defect may not have been due to obviously faulty maintenance procedures. The issue is not whether a sufficiently high standard of care was achieved but an absence of reliable evidence as to whether any care had been taken at all.

Accordingly the appeal is dismissed with costs.

Hogan, P.
9

At about dusk on the 1st November, 1971, the respondent, Margaret Murphy, was driving her car along the Northern part of Blue Hill Road in the vicinity of a junction by Heastie's Service Station. There was a car in front of her which came to a halt at the junction lights apparently intending to turn to the East. Accordingly the respondent also came to a halt and as she did so the defendant's truck smashed into the back of her car. She sued him for negligence. He denied, negligence and went on to plead “inevitable accident” as his brakes had failed owing to the loss of brake fluid from a broken master cylinder. The matter went to trial and the learned trial judge found for the respondent on the issue of negligence. He gave judgment for $1, 632.96 in respect of damage to the car but disallowed the claim for loss of income.

10

Against that judgment the appellant has appealed, seeking the dismissal of the respondent's claim on the grounds that the learned trial judge wrongly concluded that the appellant had failed to discharge the onus of explaining the cause of the accident “or to avoid the same” and that such conclusion was against the weight of the evidence and inconsistent with the learned trial judge's findings of fact.

11

In his judgment the learned trial judge did find that the brakes had failed but went on to say that “failure of the brakes is not by itself sufficient in law to establish the defence of inevitable accident”. To sustain such a defence he said it was necessary either to show what caused the accident and that the result of that cause was inevitable or to show all possible causes, one or other of which produced the accident, and that in respect of each of these possible causes the result could not be avoided. The learned trial judge continued:–

“The defendant must show that the cause of the collision was a cause not produced by him, but a cause the result of which he could not avoid.”

12

In this connection he referred to the case of The Merchant Prince [1892] P. 179; at 189 and to the statement of Denning L.J., as he then was, in the Southport Corp. v. Esso Petroleum Corp. Ltd [1954] 2 Q.B.D. 182, 200, that the rule applies not only to a ship at sea but also to a lorry which gets out of control. This was followed by a passage from the speech of Lord Radcliffe in the House of Lords, where he said:–

“…assuming that the event itself was prima facie evidence of negligence and the respondents had so framed their case, I do not doubt that the majority of the court of appeal were right in saying that the appellant would not have displaced that evidence by showing that their failure in navigation was due to a failure in the steering of the ship.”

13

In the light of these authorities the learned trial judge examined the evidence in the case.

14

There seems to have been little doubt that the failure of the brakes was due to the absence of brake fluid in the controlling mechanism but, apparently, the learned judge thought that the cause had not been established because it was not clear whether the absence of the fluid was due to a break in the master brake cylinder under the dashboard or a break in the line under the car. In this connection he said:–

“Next as to what was the cause of the failure of the brakes. In the defence pleading, the cause is alleged to be that the master cylinder had broken causing the brake fluid to escape and the absence of brake fluid in the cylinder was responsible for the failure of the brakes (that is the foot brakes) to hold.

…Moncur testified that he saw fluid on the ground; he looked under the car and he saw a hole in the brake line; nothing was dropping when he looked at it. Rolle says that h examined the master cylinder and found it empty. He says that he saw fluid leaking from the cylinder so he looked under the truck (not under the cylinder inside the car) and that he saw that the fluid was leaking from a broken line. This is the evidence of two policemen who examined the vehicle at the scene and were called as witnesses for the defendant.”

15

The defendant had also called one Charles Delancey, experienced in motor engineering, who said that if the rubber in the master /cylinder had broken he would not have expected to find traces of fluid on the ground but inside the truck. On this evidence, the learned judge said, the defendant had not discharged the onus of showing what caused the brakes to fail and consequently it was impossible to know if he could have avoided it.

16

The learned judge then proceeded to examine the defendant's evidence as to the accident and in particular his statement that he saw in front of him the car which was turning to the right and the respondent's car, for the first time, when it was stationary....

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