Josephine Okoli V. Okolo Nwagu (1960) LLJR-SC

Josephine Okoli V. Okolo Nwagu (1960)

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ADEMOLA, CJF

This is an appeal from a judgment dismissing a claim for damages under the Fatal Acci-dents Acts 1846-1864. The appellant is the widow and administratrix of the deceased, Ezekiel Okoli, who was knocked down and killed by a lorry driven by the respondent’s employee and died on the 21st June, 1955, and she claimed £3,000 damages on behalf of herself and of Augustine Okoli, the adopted child of the deceased and herself. If a claim lay under the Fatal Accidents Act at all at the date of the deceased’s death, it must have been by virtue of section 14 of the Eastern Region High Court Law, 1955, under which the statutes of general application in force in England on the 1st January, 1960, were in force within the Eastern Region, and it is now con-ceded by the appellant that no claim on behalf of an adopted child would have lain. It is also conceded that a further claim made by the appellant as administratrix on behalf of the estate of the deceased did not lie, since the provisions of section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934, were not in force in the Eastern Region on the material date.

It would appear that the deceased travelled in a bus from Awka to Onitsha. The bus stopped on the highway at Onitsha town and passengers alighted. The deceased alighted from the back, turned round and walked on the kerb beside the bus to the front of the bus and then crossed the road in front of the bus. At this time a lorry travelling in the same direction as the bus came along from behind the stationary bus. As the deceased got on the road in front of the bus and a short distance away from it, the lorry collided with him, dragging him a short distance before it finally stopped. Some time later, he died as a result of the wounds. There was evidence that the road is a very busy road.

The argument before us, put by Counsel on both sides, turned on the law of negligence and contributory negligence. The appellant’s counsel argued that the main cause of the collision was due to the defective brakes of the respondent’s lorry, without which the collision could have been averted; that the respondent, having put on the road a lorry with defective brakes, had deprived the driver of his lorry of the opportunity of averting the accident. Counsel relied on the case of British Columbia Electric Corporation v. Loach (1916) 1 A.C. 719.

For the respondent, it was argued that there was no evidence that the lorry was travelling at an excessive speed and with inefficient brakes.

It is unnecessary for me, for the purpose of this appeal, to make reference to the various differences of opinion on the decision in Loach’s case; it is sufficient to say that, in my view, that case has no application to the present appeal. In Loach’s case, D. was being driven in a wagon by A; by the negligence of both, the wagon was driven to a railway crossing. The driver of the approaching train saw the wagon when the train was about 400 yards away. He applied his brakes but due to the defect in the brakes the train did not stop but ran over D. If the brakes had been in order, the driver could have stopped the train in 300 feet.

There was no suggestion in the present appeal that the driver of the lorry saw the deceased at a distance, and the independent evidence suggested that the point of impact was only seven feet from the stationary bus. The evidence of the lorry driver and that of a passenger in the lorry, which was accepted by the learned trial Judge, was that the deceased came out suddenly in front of the lorry and that the driver did not see him, nor was he in such a position that he could have seen him. There was, therefore, no-thing like “constructive last opportunity” as in Loach’s case, or the matter of inefficiency of the brakes which operated to cause the collision at the last moment, or the running of the lorry at an excessive speed which required a perfectly efficient brake to arrest it.

The burden of proof in these fatal cases is on the plaintiff who alleged negligence on the part of the defendant. If the plaintiff himself by his own negligence contributed to the accident, then the question is, whose negligence caused or was responsible for the accident? – see Loach’s case (supra) at p.727.

The evidence in this case established that the deceased, without any re-gard for his own safety, crossed the road – a busy road-in front of a stationary bus, without looking or even using his ears to hear the horn of an oncoming vehicle, the driver of which had no means of seeing him-his view having been impeded by the stationary bus. It was clear that the respondent’s driver could not have averted the collision as there was not sufficient separation of time, place and space for him to do so – Admiralty Commissioners v. S. S. Vo-lute (1922) 1 A.C. 129 at p. 144-145.

I would hold in the circumstances that the learned trial Judge has come to a right decision in the matter, and I would dismiss the appeal. The question as to whether or not the Fatal Accidents Acts applied in the Eastern Region at the material time was argued before us, but it is now unnecessary to express an opinion on that point, and I would leave it open, as was done in Odukoya v. Peters, 14 W.A.C.A.505. Since 10th May, 1956, the Fatal Accidents Law, 1956, has governed the matter in the Eastern Region.

The appeal is dismissed with 25 guineas costs to the respondent.

BRETT, F.J.:

I concur.

HUBBARD, AG. F.J.

I concur.

Appeal dismissed


Other Citation: (1960) LCN/0859(SC)

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