Ludgate v Lovett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 24 April 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0424-3 |
| Date | 24 April 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0424-3
Lord Justice Harman
Lord Justice Danckwerts and
Lord Justice Edmund Davies
In The Supreme Court of Judicature
Court of Appeal.
(Civil Division)
(From: His Honour Judge Harington—Dudley County Court)
Mr.C.ROSS-HUNRO (instructed by Messrs. Tuck & Mann & Geffen & Co., Agents for Messrs. Currie & Co., wolverhamapton) appeared on behalf of the Appellant (Plaintiff).
Mr. RICHARD TUCKER (instructed by Messrs. Lyon, Clark & Co., West Bromwich) appeared on behalf of the Respondent (Defendant).
(without calling upon Counsel for the Appellant to reply)
This is a case of some nicety. It has been very well argued on both sides. The facts are simple and hard. ly in dispute, so far as they are known. The plaintiff was a man who for a hobby hired out cars. He was an expert on mechanical affairs himself, being a lecturer at a technical college, The defendant at the time of the accident was an infant and was an expert professional footballer playing forest Bromwich Albion occasionally. He wanted to go and see his girl friend. His car was broken down and he applied to the plaintiff to hire him a car. The plaintiff eventually did hire him a van. It was a well-used vehicle, being some years old, but the evidence la that the plaintiff, who had bought it six weeks before, had attended to it from a mechanical point of view. Its tyres were in good order and not seriously worn and there were no mechanical defects that anybody could find.
After some preliminary, the defendant started off to meet his girl friend and he drove on to the M.1 and down the M.1. That he continued to do until he had been driving for three hours, so it appears, though it is not quite explained where he was all that time. Anyhow three hours after his starting off he was involved in a very serious accident. The accident was of the simplest possible character. He was travelling at 60 miles an hour. There was only one other vehicle on the road and that behind him: it was 10 o'clock at night; the car suddenly swerved violently to the right, he attempted to correct that swerve and In so doing over-corrected it, overset the oar, and it tumbled over itself twice, I think, and landed on its wheels on the hard shoulder. He was very seriously injured. He has made, happily, a complete recovery from that injury.
When the car was examined, as it was subsequently, by an expert no defect was found except one deflated tyre, and about that the expert gave evidence which convinced the judge that the deflation of the tyre was caused by the impact when the car hitthe verge. It dented the rim and that caused the tyre to deflate. It was a solid-tube tyre.
Therefore this on the face of it is a simple claim by the plaintiff. The plaintiff says: "You, the defendant, drove away my car which you had hired and which admittedly was in good order and condition: three hours later it was a wreck, and you are responsible.""Oh no", says the defendant, "I am not responsible because I was not guilty of any negligence: the accident happened without any fault on my part".
Now it la admitted that here the doctrine of res ipsa loquitur applies. I do not think I need go into the authorities cited to us. I merely mention the speech of Lord Simonds in Duncan v. Cammell Laird & Co. (1946 appeal Cases 401) and the well-known Judgment of Lord Justice Asquith in the Barkway case (1948 2 All England Reports 460), that latter case subsequently went to the House of Lords and Lord Justice Asquith's observations do not appear, of course, there: but the position appears to be this: it being admitted on all hands that the plaintiff's Prima facie case is one where res ipsa loquitur, the burden is cast upon the defendant to explain that which otherwise is without explanation, or If he cannot explain it, at least to show that no fault of his was involved. He can do that even though he cannot explain it. Of course, as the judge said, it is much easier if he can explain it; but nevertheless there are cases In which, although no explanation can be found, the defendants satisfy the tribunal that there wan no fault on their part and that they did all that they ought to do. In support of that one has the case of Walsh v. Holst & Co. Ltd., reported in 1958 1 Weekly Law Reports at page 800; and the judgment of Lord Justice Hodson is the one which is usually cited in this connection. He said: "I am of opinion, therefore — and in this I differ from the judge — that the plaintiff established a Prima facie case against both the first and third defendants, and in the absence of any evidence to show that there was no negligence in the can-due of the operations, the plaintiff would, I think, have beenentitled to succeed. The judge did not, however, confine himself to saying that the plaintiff had made out no Prima facie case by proving that he was hit by a brick which cane from the premises In question when he was lawfully upon the highway and the first defendants were working on the building of which the third defendants were the owners and occupiers. He went on to deal with the case on the footing that the defendants who are now respondents to this appeal had, by the evidence called before the court, satisfied him that there was no negligence, that Is to say, that they had taken all reasonable steps in the performance of the work to prevent injury to persons using the highway. It is this question which has been the main subject of consideration before this court. The plaintiff submits that since the fall of the brick is Prima facie evidence of failure on the part of the first and third defendants to carry out the work without negligence and there is no explanation of the accident at alt, still less one which does not connote negligence, there should be Judgment for him. Although there is no such explanation, as, for instance, that the fall of the brick had been caused by the subsidence of the building due to some cause over which the defendants had no control and could not reasonably have anticipated, nevertheless the defendants are entitled to succeed if they can prove that there was no negligence on their part, that is to say, that they took all reasonable precautions to prevent injury to users of the highway: compare Moore v. R. Fox & Sons".
So it follows that, in a res ipsa lcquitur case, eyen though you, the defendant, cannot explain why or how the accident happened, it is open to you to satisfy the tribunal that you took all reasonable precautions, or did not, in other words, act in any negligent manner at all.
Now here the defendant, conscious that things looked black against hint, averred and counterclaimed on the footing that in fact It was the deflation of this tyre which brought about the accident: the tyre, therefore, was not in a proper condition and the car was not roadworthy: and he counterclaimed against theplaintiff on that footing. His evidence about the tyre was destroyed by the plaintiff's experte, who showed that it was a tyre tn good order and that...
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