Barkway v South Wales Transport Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Normand,Lord Morton of Henryton,Lord Reid,Lord Radcliffe |
| Judgment Date | 09 February 1950 |
| Judgment citation (vLex) | [1950] UKHL J0209-1 |
| Date | 09 February 1950 |
| Court | House of Lords |
[1950] UKHL J0209-1
Lord Porter
Lord Normand
Lord Morton of Henryton
Lord Reid
Lord Radcliffe
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Barkway against South Wales Transport Company Limited, that the Committee had heard Counsel, as well on Tuesday the 8th, as on Wednesday the 9th, Thursday the 10th, Monday the 14th, Tuesday the 15th, Wednesday the 16th and Thursday the 17th days of November last, upon the Petition and Appeal of Eunice Irene Barkway (administratrix of George Morgan Barkway deceased) of 5 Rhydyrafon. Llanerch, Llanelly, in the County of Carmarthen, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 9th of July 1948, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of The South Wales Transport Company Limited lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 9th day of July 1948, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Sellers of the 30th day of July 1947, thereby set aside, be, and the same is hereby. Restored:
And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Court of Appeal, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This appeal is from a judgment of the Court of Appeal reversing a decision of Mr. Justice Sellers by which he found the Respondents liable for negligence in bringing about the death of the Appellant's husband, and awarded her £2,000 damages. The members of the Court of Appeal themselves were not unanimous. Lord Justice Bucknill was for dismissing the appeal whereas the majority allowed it. The negligence alleged against the Respondents was that one of their omnibuses had met with an accident owing to their want of proper supervision of its tyres and owing to the excessive speed at which it was driven. The circumstances under which the accident occurred must be fully set out, but for the moment it is sufficient to point out that the majority thought no negligence had been established whereas Lord Justice Bucknill agreed with Mr. Justice Sellers that the Respondents were negligent, though he does not appear to have arrived at this conclusion wholly upon the same ground.
The Respondents are a transport company, and had at the material time undertaken to carry workers from the Royal Ordnance factory at Pembury to Gorseinon by omnibus. The omnibus in question, a double-decker, was some 26 feet long, 7 feet 6 inches wide, and weighed 10 tons. On the early morning of 27th February, 1943, it was driven by one Lewis Enoch, and left Pembury for Gorseinon with a full load of passengers, 53 in number, of whom the Appellant's husband was one. After it had travelled about 5 miles, the offside front tyre burst while the omnibus was passing through the village of Pwll. There was a loud explosion and the omnibus veered across the road to the offside footpath, tore down some iron railings, fell over an embankment, and lay on its off side in contact with a truck or trucks standing on the railway line below the road. Shortly after the explosion the burst tyre became deflated. Before it had done so the omnibus proceeded for some 82 feet and then, as a result of the rim cutting through the deflated tyre, caused marks on the road which continued for 86 feet 2 inches. At that point it mounted the pavement and continued to travel on the edge of the embankment for a further 82 feet. In these circumstances the Appellant claims that the doctrine of res ipsa loquitur applies. Omnibuses, it is said, which are properly serviced, do not burst their tyres without cause, nor do they leave the road along which they are being driven. If the evidence stopped there, the statement is unexceptional. As was said by Erle J., in Scott v. London & St. Katherine Docks Company (1865) 3 H & C 601, "Where the thing is shown to be under the management 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." But the doctrine is dependent upon the absence of explanation, and although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, upon the facts as established, negligence is to be inferred or not. In the present case, the evidence given and accepted by the learned judge was that the omnibus left Pembury works at 6.15 and the accident occurred not later than 6.30. The distance covered between the start from the works and the place of the accident was 5 miles 220 yards, but the first 1 3/8 miles was along a private narrow and dangerous road and the remaining 3 3/4 miles along a road which was somewhat narrow and winding and in poor condition. Over the earlier portion the prescribed and safe limit was 10 m.p.h. Over the second portion the limit during blackout hours in wartime was 20 m.p.h. Lord Justice Bucknill points out in the course of his judgment that if the driver proceeded at the proper speed of 10 m.p.h. over the private road, his average speed over the public road must have been some 32 m.p.h. This calculation was accepted by the Respondents in your Lordships'; House, but it does not conclude the matter or determine the speed at the moment when the accident took place. There was a considerable body of evidence at the trial to the effect that the omnibus was driven at a very fast speed in the conditions obtaining, and even that it increased speed just before the accident. On the other hand, many of the witnesses who gave this evidence had previously made statements to the police that the vehicle was being driven at a moderate speed. The driver himself asserted that he was going no more than 15-20 m.p.h. at the vital moment, but the learned judge has not accepted this estimate and has put the speed at about 25-6 m.p.h. The exact speed must, of course, be no more than a rough estimate, but in the circumstances I see no reason for departing from the opinion expressed by the learned judge. It appears that shortly before the accident the road rises slightly uphill, and though the evidence is not positive there is a suggestion that gear was then changed down, an event which would lead passengers to suppose, from the increased revolutions of the engine, that the speed had increased. Moreover, it is exceedingly difficult, even for an expert, to estimate speed in the dark, and in the particular case it is doubtful if the speed could ever have exceeded 30 m.p.h. as the engine was fitted with a governor preventing it from proceeding faster than that pace.
If I were left to myself, I should be inclined to say that the driver must have exceeded the prescribed speed over all portions of the course, including the first portion, and, as regards the first portion, that in effect is the result of his evidence. If the prescribed rate of 10 m.p.h. was exceeded on that portion so that it reached 15 or 20 m.p.h. instead of 10 m.p.h., the speed on the later portion need not have been much greater than 20 m.p.h. In this, therefore, as in all matters where Sellers, J., saw the witnesses and formed his impression from the evidence given, I suggest that it would be unsafe for your Lordships to depart from the conclusion at which he arrived.
I have dealt a little at length and shall hereafter have to deal with the question of speed because it was one of the foremost contentions relied upon in support of the Appellant's case. But for the speed, it was said, the accident would not have happened, the tyre would not have burst and the omnibus would have kept the road.
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 were no explanation the mere happening of the accident would be fatal to the defence. After the accident, however, the tyre was inspected by two experts who were called to give evidence before the learned judge. It appears that under the system adopted by the Respondents, tyres are examined twice weekly, and this particular tyre was examined by a Mr. Jenkins two days before the accident took place. When it was examined at the trial some four years after the accident, it was found that there was an unfilled gash in the outer cover. This outer cover is made up of a layer of rubber called the tread which comes into contact with the road surface. Inside the tread lies another layer of rubber called the breaker and inside that again is...
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