The plaintiff/appellant was driving his car on the correct side of the road when suddenly the defendants/respondents' bus driven in the opposite direction crossed an island dividing the road into two and crashed into the plaintiff/appellant's car.

The accident occurred after the type of the defendants/respondents' bus had burst.

The plaintiff/appellant thereupon brought an action against the defendants/respondents. He relied on the doctrine of res ipsa loquitur for his claim while the case for the defendants/respondents was, inter alia, one of inevitable accident.

The trial Judge rejected the plea of res ipsa loquitur put forward by the plaintiff/appellant on the ground that the cause of the accident was known, and that the maxim applied only where the causes of the accident were unknown.

The plaintiff/appellant appealed against this decision to the Court of Appeal.

On Appeal:-

HELD:

(1)     A person relying on inevitable accident must see that something happened over which he had no control and the fact of which would not have been avoided by the greatest care and skill.

In this case the trial Judge ought not to have concluded that the defendants/respondents had discharged the onus of proving inevitable accident when the cause of the accident was not shown.

(2)     What the trial Judge placed upon the plaintiff/appellant to prove was what he should have called upon the defendants/respondents to prove, for it is their case, not the plaintiff/appellant's, that the accident was inevitable.

(3)     The trial Judge was in error when he said that the accident which occurred was one over which the second respondent had no control. In the view of the court, this was a case of prima facie negligence shown by the plaintiff/appellant and not rebutted by the defendants/respondents. In all the circumstances, therefore, the trial Judge should have held the first and second respondents liable for the accident.

(4)     What was important and what the trial Judge should have directed his mind to was the cause of the tyre burst. He clearly misdirected himself when he said that once the defendant explained that the cause of the accident was due to a front tyre that explanation obviated the doctrine of res ipsa ioquitur. The responsibility was on the defendants/respondents to establish why the tyre burst. Evidence should have been called to show that the tyre burst was not due to the negligence of the defendants/respondents. The onus was clearly on the defendants/respondents to establish the cause of the tyre burst and it is only when this would have been satisfactorily done that the doctrine of res ipsa loquitur could be obviated.

Appeal allowed: Judgment of High Court set aside:

Judgment entered in favour of plaintiff/Appellant against 1st and second respondents jointly and severally.

Cases referred to:

Barkway v. S. Wales Transport Co., Limited 1950 1 A.E.R. 392.

Bolton v. Stone 1951 A.C. 850.

Woods v. Duncan 1946 A.C. 401.

T.O. Kuti and anor v. Salawu Jugbobo 1967 N.M.L.R. 419

APPEAL from High Court, (West)

Cole, for the Plaintiff/Appellant

Okueyungbo, for the 1st & 2nd Defendants/Respondents.

Akande, for the 3rd Respondent.

Eso, J.A.:- The facts of this case as accepted by the High Court, Ibadan, are that appellant, who was plaintiff in the court below, drove his car towards Agodi, Ibadan, on a double carriage way which has a sort of island in between dividing the road into tow. Appellant was on his correct side of the road when suddenly respondents' bus travelling on the opposite direction, and on the other side of the road, which was hitherto, itself, the correct side of the road for the bus left that side, crossed the island and crashed into appellant's car. The accident occurred after the tyre of the respondents' bus had burst.

The appellant relied on the doctrine of Res ipsa loquitur for his claim, while the respondents' case was, among other things, one of inevitable accident. The legal issue raised in regard to this was to determine on whom the onus rested to establish the cause of the accident: in other words, in our view, to determine the cause of the tyre burst and consequently to determine the reason for the vehicle crossing the island. Once the responsibility for the onus has been determined, what is left is the determination of its discharge. Another issue which was raised in the case was who had responsibility for the bus at the time of the accident.

The learned trial Judge, Craig, J., after a comprehensive review of the evidence led before him held that the 3rd respondent, Adenuga, was the owner of the vehicle at the time of the accident and that the second defendant was the driver. Consequently, in the decision of the learned trial Judge, the third, and not the first respondent, had responsibility for the vehicle at the time of the accident. In regard to this, the learned trial Judge relied on Ex. "N" which he described as a rather curious and one-sided Hire Purchase Agreement. The Judge said:-

"After considering the evidence and the submissions made, I am of the view that the questions which have to be resolved in reaching a decision in this matter are these:-

(1)     Who is the owner of the vehicle No. LM. 7986 against whom the plaintiff must establish his case?

(2)     Is the 2nd defendant negligent as averred in the Statement of Claim?

(3)     If so, what, if any, damages were proved?

As far as the first point is concerned I am satisfied both on the evidence and on the law that the 3rd defendant is the owner of the offending vehicle. By virtue of Ex. 'N' a rather curious and one-sided Hire Purchase agreement, the 3rd defendant took possession of the vehicle No. LM. 7986, and agreed to be solely responsible and...liable for any litigation that may arise as a result of any accident and to indemnify the owner on all claims.

He also agreed to be responsible for renewing the vehicle licence, the Certificate of Road-Worthiness and the Insurance Policy whenever they fall due for renewal. Furthermore, the evidence, which I accept, shows that the employed the 2nd defendant as his driver and that he had an overall control of the vehicle. Indeed, the endorsements on Ex. 'N' reveal that as at the 1st of May 1967, (the date of the accident) the 3rd defendant had repaid about 80% of the cost of the vehicle and only had £258 to pay. This meant that if the agreement between the parties was a proper Hire Purchase agreement, the 1st defendant could no longer repossess the vehicle if the 3rd defendant defaulted (although he had other remedies) and the 3rd defendant was virtually the "owner of the vehicle."

Consequently the learned trial Judge discharged the first respondent from liability. In regard to liability itself the learned trial Judge rejected. Appellant's plea of Res ipsa loquitur on the ground that the cause of the accident was known. On this he said:-

"The maxim applies only where the causes of the accident are unknown but the inference of negligence is clear from the nature of the accident, and the court is asked to hold the defendant liable if he does not produce evidence to counteract the inference. If the causes are sufficiently known, the case ceased to be one where the facts speak for themselves and the court would have to determine whether or not, from the known facts, negligence is to be inferred. Barkway v. S. Wales Transport Co., Limited, 1950 1 All E.R. 392 at p. 394 Bolton v. Stone 1951 A.C. 850 at p. 859. In rebutting the inference of negligence, the defendant can prove that he was not negligent even though he cannot explain how the accident happened See Woods v. Duncan 1946 A.C. 401; but it was held by the Supreme Court T.O. Kuti & anor. v. Salawu Tugbobo 1967 N.M.L.R. 419 that if a prima facie case of negligence was raised for the defence to answer, it is not enough of itself to answer that it was due to a skid, the defence must go further and establish that the skid was not due to their negligence.

In the present case, the 2nd defendant explained that the cause of the accident was due to a front tyre burst, - this bit of evidence was confirmed by the plaintiff's first witness P.C. Akinpelu. Since the cause of the accident is known I hold that the maxim Res ipsa loquitur does not apply."

That was how the learned trial Judge resolved the issues. Against this decision, the appellant, who is represented by Mr J.A. Cole, of Counsel, filed the following grounds of appeal.

GROUNDS OF APPEAL

"(1)    (a) The learned trial Judge erred in Law and in fact in omitting any reference to exhibits "J" and "K" in his judgment.

(b) in admitting hearsay evidence that the second defendant was said to be in possession of a current certificate of Road-worthiness for Vehicle No. LM. 7986 when no such Certificate of Road-worthiness was produced or admitted in evidence.

(c) by accepting the contention of the defendants that they had proved inevitable accident when there was evidence that the second defendant lost control of his vehicle the brakes and steering of which were in good condition, and that by reason of the second defendant's negligently losing control, he crossed a road 'island' to the opposite side of a dual carriageway and inflicted personal injury upon the plaintiff and damage to the plaintiff's vehicle.

(d) in holding that the defendants admitted in his Statement of defence (paragraph 4) that he delivered Vehicle No. LM. 7986 to the third defendant when it was new and without mechanical defect, which admission is contradicted by exhibit C and paragraph 7 of the plaintiff's Statement of Claim that the Police investigation was closed 'due to a mechanical defect in the said vehicle'. No evidence or proof of the alleged mechanical defect was admitted during the hearing of this suit the bursting of front tyre of the third defendant's vehicle is not a mechanical defect.

(2)     The learned trial Judge also failed to exercise judicial discretion.

(a)     in awarding costs against the plaintiff in favour of the first and second defendants in the sum of 50 guineas and in favour of the third defendant in the sum of 30 guineas when there was a proof that the plaintiff was travelling on the proper side of the public highway when the second defendant crossed the road island and collided with him and caused him personal injury and damage to his car whereby he had to undergo hospital treatment and was deprived of the use of his car for 50 days.

(b)     in omitting to consider the sum of £46.16s.od. paid by the plaintiff for Court fees."

In regard to the issue of ownership of the vehicle or, to put it more correctly, the party responsible for the offending vehicle, during the arguments in this case, the attention of Counsel representing the respondents Messrs. Okueyungbo and Akande respectively, were drawn to Ex. "N". Ex. "N" is the Hire Purchase agreement allegedly entered into by the 3rd respondent and the 1st respondent. As we had earlier said that learned trial Judge relied on this exhibit in determining that the 3rd respondent was the owner of the vehicle. However, on Ex. "N" the name of the hirer was put as "Joseph Adenuga." Joseph Adenuga is the 3rd respondent but the exhibit was executed by one "S.A. Adenuga" whereas the same agreement was alleged to have been explained and interpreted to Joseph Adenuga. Mr Okueyungbo who represents the first and the second respondents informed us that he would not be pressing the issue of the signatures. He admitted that "S.A. Adenuga" signed Ex. "N" as "hirer" whereas the agreement was purported to have been made between Kuti the 1st respondent, and "Joseph Adenuga" the 3rd respondent. Counsel further admitted that Mr Joseph Adenuga, that is the 3rd respondent did not sign the agreement. Mr Akande took the course of not supporting the judgment in view of the revelation in Ex. "N".

It is obvious to us that Counsel, having conceded so much, the issue as to the ownership no longer arises and the grounds of appeal filed against this issue must succeed as it stands. In other words, it can no longer be an issue that 3rd respondent is liable on the facts as pleaded. The 1st respondent must be held liable as the owner or person responsible for the vehicle and the 2nd respondent, liable as the driver. If then liability could be proved, first respondent would be vicariously liable for the fault of the 2nd respondent. That, to put it simply, must be the position.

We are then left with the issue of liability itself. As we had earlier said the appellant relied on the doctrine of Res ipsa loquitur. His case is simply thus: As appellant was driving on the correct side of the road, the offending vehicle would not normally cross an island which divides the road and hit appellant's vehicle. As matters stand, therefore, and without further explanation there is prima facie liability for negligence. The case of the respondents is one of inevitable accident. Respondents admit that the accident occurred as described by the appellant but maintained that the accident was caused by the burst of one of their tyres. In Wing v. London General Omnibus. Co, 1909 2 K.B. 652 Fletcher Moulton, L.J., came out with the suggestion that the doctrine of Res ipsa loquitur would not apply to cases of collision on the highway. Said the learned Lord Justice:-

"Every vehicle has to adapt his own behaviour to the behaviour of other persons using the road and over their actions those in charge of the vehicle have no control.

Hence the fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle"

We have no doubt that this is too wide a proposition. A more correct statement of law is, we think, as put by Scrutton, L.J., in McGowan v. Stott (1923) reported in note to Halliwell v. Venables 99 L.J.K.B. 353 at p. 357 when he said:-

"Where both parties are moving and have a right to move prima facie the mere fact that those moving bodies run into each other is not evidence of negligence... When you get to the case of a man standing still in the highway in broad day light and run into, I think myself that would be prima facie evidence of negligence of the driver of the vehicle that ran into him."

But this still, is not all in our view. When there is a violent swerve, as in this case, there is no doubt in our mind that the doctrine of Res ipsa loquitur will apply. See also O'Hara v. Scottish Motor Traction Co., 1941 SC. 363 and also Doonan v. S.M.T. Co., Limited 1950 SC. 136. Lewis, J.S.C., in Ruti and Alli v. Tugbobo 1967 N.L.R. 419 delivering the judgment of the Supreme Court expressed the view that a vehicle properly driven does not prima facie zig-zag and thus collide with a pillar or a bridge. In our view a bus properly driven does not leave its side of the road, cross an island, and hit another vehicle which is completely on the other side of the road.

But the learned trial Judge said the maxim would only apply if the causes of the accident are not known. In the view of the learned trial Judge the second respondent had explained the cause of this accident and this he put as a burst of a front tyre. Now let us examine the piece of evidence relied upon by the learned trial Judge. 2nd respondent in his evidence said:-

"I was coming from Oke-Ado and turned into the main Agodi road, I travelled about a 100 feet towards Mapo Hall when the front right hand tyre of my vehicle burst. I lost control of the vehicle and the vehicle crossed the island to the other side of the road and collided with another car coming from another direction... The tyre which got burst is a new one, it was bought about a month before the accident;"

James Akinpelu a Police Constable who was an eye witness had this to say:-

"I stood on the spot I heard one of the tyres of the mini-bus burst, I saw that the driver of the mini-bus was unable to control the bus and it went and hit the plaintiff's car which in turn hit one of the trees planted on the island. I cannot say what could have caused the tyre burst but a vehicle inspection officer of the Nigerian Police might say."

The position is so far thus: The offending vehicle had new tyres on it. On the day of the accident, one of its tyres burst and as a result the accident occurred. What is important and what the learned trial Judge should have directed his mind to, in our view, was the cause of the tyre burst. He clearly misdirected himself when he said that once the defendant explained that the cause of the accident was due to a front tyre that explanation obviated the doctrine of Res ipsa loquitur. The responsibility was on the respondent, in our view, to establish why that tyre burst. Evidence should have been called to show that the tyre burst was not due to the negligence of the respondent. Very many things could have been responsible. The burst could have been due to factory fault or a puncture or lack of maintenance or insertion of a weak inner tube. The onus is clearly on the respondent to establish the cause of the tyre burst and it is only when this would have been satisfactorily done that the doctrine of Res ipsa loquitur could be obviated. Lord Esher in The Schwan-The Albano 1892 P. examined what is meant by inevitable accident. He said:-

"To my mind these cases show clearly what is the proper definition of inevitable accident as distinguished from mere negligence - that is a mere want of reasonable care and skill.

In my opinion a person relying on inevitable accident must see that something happened over which he had no control and the fact of which would not have been avoided by the greatest care and skill. That seems to me to be the very distinction which was taken and was meant to be taken between the cause of inevitable accident and a mere want of reasonable care and skill."

In our view this is a sound proposition. How could the learned trial Judge conclude that the respondents have discharged the onus of proving inevitable accident when the cause of the accident was not shown? On the contrary, the learned trial Judge shifted the onus on the appellant for he said:-

"As I had previously observed, the plaintiff had advance notice of the defence which the defendants were putting up, but led no evidence to show that the accident could have been avoided by due care and skill, or that the tyre got burst because of faulty maintenance or that the defect (if any) in the tyre could have been detected by the exercise of due care."

To our mind, this is a serious misdirection. What the learned trial Judge placed on the appellants to prove is what he should have called upon the respondent to prove, for it is their case, not the appellant's, that the accident was inevitable. In Barkway v. South Wales Transport Co., Limited 1950 1 A.E.R. p. 392 Lord Porter referred to the decision of Earle, C.J., in Scott v. London Dock Co., 3 H. and C. 601. There the learned C.J. had said:-

"Where the thing is shown to be under the management of the defendant or his servants, and the accident of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

In the Barkway case itself Lord Porter had this to say:-

"The second ground of complaint is that in the case of an omnibus which has been properly serviced, the tyre would not have burst. Again, if there was no explanation, but mere happening of the accident would be fatal to the defence."

The tyre in the Barkway case was in fact inspected by two experts and they were called to give evidence before the learned Judge. The particular tyre had earlier been examined by one Mr Jenkins, two days before the accident, and when it was examined four years after the accident by the trial Judge it was found that there was an unfilled gash in the outer cover. That outer cover was made up of a layer of rubber called the tread which comes into contact with the road surface. Inside that again is the breaker and inside that again is the cord which is about an inch thick and is the portion of the tyre which consists the pressure of the air and with which the inner tube is filled. The cause of the tyre burst was put before the trial Judge as an "impact fracture" and it was recognised as being caused by one or possibly more heavy blows on the outside of the tyre. All these evidence were led in the Barkway case to show the cause of the type burst. The question is why was there no evidence at all led in this case to explain the tyre burst if respondents in fact relied on this as the cause of the accident.

We cannot agree with the learned trial Judge when he said that the accident which occurred was one over which the second respondent had no control. In our view, this is a case of prima facie negligence shown by the appellants and not rebutted by the respondents. In all the circumstances therefore, the learned trial Judge should have held the first and second respondents liable for the accident, and we so hold. This disposes of liability. Now to the question of damages.