Mangaria v Pasram

• Jurisdiction: Caribbean States
• Judge: Hallinan, C.J.,Lewis, J.,Marnan, J.
• Judgment Date: 03 December 1960
• Court: Federal Supreme Court (West Indies)
• Date: 03 December 1960

Federal Supreme Court

Hallinan, C.J.;

Lewis, J.;

Marnan, J.

Mangaria

and

Pasram

S. D. S. Hardyal for the appellant.

J. A. King for the respondent.

Tort - Negligence — Motor car driven in middle of road and with one headlamp off — Collision with another vehicle-Whether driver of motorcar negligent.

Hallinan, C.J.

1 In this case the defendant (respondent) was driving a motor car along the road from New Amsterdam in the direction of Corentyne at night carrying as a passenger the plaintiff (appellant).

2 He came into collision with a motorcyclist who was carrying a passenger on the pillion., The motor cyclist was killed as a result of the accident and the appellant, a passenger in the respondent's car, was injured. The appellant has sued the respondent for damages for negligence in that he did not drive, while she was in the car, with that care and skill required, of him in the performance of his duty to the appellant.

3 The learned trial judge found that the respondent was driving his car that night with only one headlamp, which was on the near or left side of the car. The two park lights were on. The respondent admitted that he was driving in the centre of the road. On the other hand, the learned trial judge found that the motorcyclist was approaching at a very fast speed whereas the respondent's car was only proceeding at 20 to 25 m.p.h. The approaching motorcycle was seen swerving from one side of the road to the other.

4 In these circumstances the trial judge directed himself thus: he said it was necessary to establish not only the knowledge of the defect by the respondent-that is, the condition of the head lamp-but also that the defective head lamp misled the driver of the motor cycle thereby causing or contributing to the collision between the motor and the motor cycle.

5 It must, I think, be conceded that to drive a motorcar in the centre of the road is not in itself negligence. The only negligence alleged by the appellant in her statement of claim was the lack of a headlamp on off side of the motorcar. Counsel for the respondent has objected to any argument being advanced which would combine the fact of the motorcar being driven in the centre of the road with the defect in the headlamp. I think that the fact of the ear being driven in the middle of the road was a surrounding circumstance, a collateral fact to the alleged negligence of driving with the defective head light; I do not think that the appellant should be precluded from arguing that the danger of driving with a defective head lamp would be aggravated if he drove in the middle of the road. In these circumstances the case cited to us of Esso Petroleum Co., Ltd. v. Southport Corpn., [1955] 3 All E.R. 864, does not apply.

6 I think that the learned trial judge should have found as a fact that the respondent with reasonable care ought to have known that the offside head lamp was not working and that when he saw the approaching motor cyclist he should not have continued to drive in the middle of the road. On the authority of Wintle v. Bristol Tramways & Carriage Co., Ltd. (1917), 86 L.J.K.B. 936, it is stated in CHARLESWORTH ON NEGLIGENCE, 3rd Edn., p. 99, that failure to carry the usual lights, which misleads the driver of another vehicle and causes a collision, is negligence.

7 It is true that the motorcyclist is dead and we have no direct evidence from him whether he was...