Wakilii

Dewshi v Ali and Others (Civil Appeal No. 29 of 1968)

East African Court of Appeal · [1968] EACA 13 · 1968 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil appeals from High Court of Kenya at Mombasa dismissing negligence claims arising from motor vehicle accident
Decision
Respondents held liable in damages; matter remitted to High Court for assessment of damages

Observed later treatment

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Holding

The Court of Appeal allowed the appeals, holding that the respondents failed to rebut the presumption of negligence arising from the doctrine of res ipsa loquitur. The court found insufficient evidence that the respondents had conducted proper inspection and maintenance of the tyres before hiring out the vehicle. The absence of evidence regarding the condition of the tyre, the lack of any visual inspection, and the destruction of the tyre without allowing the appellants to inspect it meant the respondents had not discharged their burden of proving inevitable accident.

Outcome

Respondents held liable in damages; matter remitted to High Court for assessment of damages

Facts

The appellants' husband and father hired a car from the second respondent to travel from Mombasa to Dodoma for a funeral and back. The car was driven by the first respondent, a servant of the second respondent. During the journey to Dodoma, the rear offside wheel sustained a cut requiring a new tube and tyre. On the return journey, the offside front wheel sustained a puncture near Handeni which was repaired. After resting at Tanga, the car travelled approximately 40 miles before suddenly leaving the road near Lunga Lunga, striking a ditch, turning over two or three times, and coming to rest against a tree. The appellants were injured in the accident. At trial, the respondents abandoned their initial defences and raised for the first time the defence of inevitable accident caused by a tyre burst on the near side rear wheel. The trial judge accepted this defence and dismissed the suits.

Issues

  1. Whether the respondents discharged the burden of proving inevitable accident as a defence to negligence.
  2. Whether the tyre burst preceded the accident or was a result of it.
  3. Whether the respondents failed to establish that the burst could not have been avoided by proper inspection and maintenance of the tyre.

Orders

  • Appeals allowed.
  • Decision of the High Court in both suits set aside.
  • Respondents held liable in damages to the appellants.
  • Proceedings remitted to the Court below to assess damages.
  • Costs of the appeals awarded to the appellants with a certificate for two advocates.
  • Costs in the Court below to date awarded to the appellants.
  • Costs of assessing damages to be in the discretion of the Court below.

Rules and key headnotes

Negligence — Res Ipsa Loquitur — Burden of Proof — Inevitable Accident
Where the doctrine of res ipsa loquitur applies and raises a presumption of negligence, the defendant bears the burden of proving that the accident was inevitable and could not have been avoided by the exercise of reasonable care and skill.
Negligence — Motor Vehicle Accidents — Tyre Burst — Duty of Inspection
The owner or operator of a hired motor vehicle has a duty to conduct at least a visual inspection of the treads and walls of the vehicle's tyres to ensure they are fit for use before hiring out the vehicle.
Burden of Proof — Inevitable Accident — Sufficiency of Evidence
To establish the defence of inevitable accident, a defendant must adduce sufficient evidence to show that the accident was caused by something over which they had no control and which could not have been avoided by the greatest care and skill. Mere evidence that a tyre was 50% worn, without evidence of inspection, maintenance, or the cause of the burst, is insufficient to discharge this burden.
Destruction of Evidence — Effect on Burden of Proof
Where a defendant destroys material evidence (such as a burst tyre) without allowing the plaintiff an opportunity to inspect it, and fails to adduce sufficient alternative evidence regarding the condition and cause of failure of that item, the defendant fails to discharge the burden of proving inevitable accident.

Cases cited (4)

  • Embu Public Road Services v Riimi (1868) E.A. 22
  • Msuri Muhhiddin v Nazzor bin Seif (1960) E.A. 207
  • The Schwan v The Albano (1892) P.419
  • Barkway v South Wales Transport Co (1948) 2 All ER 460

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Dewshi v Ali and Others (Civil Appeal No. 29 of 1968) [1968] EACA 13 (22 November 1968)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.