Wakilii

Fernandes v Noronha (Civil Appeal No. 52 of 1968)

East African Court of Appeal · [1968] EACA 3 · 1968 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court judgment on liability in negligence action arising from road traffic accident
Decision
Matter remitted to High Court for assessment of damages with liability apportioned 50% to each party

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and found both parties equally to blame for the road traffic accident. The respondent was negligent in attempting to cross the main road in front of the appellant's motorcycle, and the appellant was negligent in riding with a smooth rear tyre and losing control. Liability was apportioned 50% to each party. The matter was remitted to the High Court for assessment of damages.

Outcome

Matter remitted to High Court for assessment of damages with liability apportioned 50% to each party

Facts

On 24 November 1965 at approximately 7:20 a.m., the appellant was riding a motorcycle along the main Limuru/Nairobi road away from the city centre. The respondent was driving his motor car from a side entrance onto the main road, intending to cross the white line dividing the road to proceed towards the city centre. The respondent entered the main road after seeing the appellant's motorcycle at an estimated distance of 200 yards. After the respondent had proceeded approximately 1½ to 2 feet onto the road, the appellant was only about 40 yards away. The respondent stopped. The appellant's motorcycle front wheel turned sharply to the left, the rider lost control, was thrown into the air, and ended up with his head against the respondent's car. The appellant suffered grievous and severe injuries. The rear tyre of the motorcycle was smooth. There was no other traffic on the road and no other witnesses to the accident.

Issues

  1. Whether the accident was solely due to the appellant's negligence or whether the respondent was wholly or partly to blame.
  2. Whether the trial judge erred in refusing to allow the respondent to be recalled for further cross-examination on a statement allegedly given to police.

Orders

  • Appeal allowed.
  • Judgment and decree of the High Court quashed.
  • Matter remitted to High Court for assessment of damages with apportionment of 50% liability to each party.
  • Order for costs in the High Court quashed; costs to be in the discretion of the judge completing the trial.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Negligence — Road Traffic Accidents — Duty of Care — Driver Entering Main Road from Side Entrance
A person at the side of or near a main road owes a duty of care to a user of the main road not to take such action as would reasonably cause apprehension in the mind of that user that such person is about to enter the main road in circumstances which might well result in an accident.
Negligence — Road Traffic Accidents — Right of Way — Main Road versus Side Entrance
A driver on the main road has the right of way and may expect a vehicle at a side entrance to wait until he has passed. A much higher degree of caution is required of the driver coming out of a side road or entrance onto the main road than of the driver proceeding along the main road.
Negligence — Road Traffic Accidents — Contributory Negligence — Defective Vehicle
A driver owes a duty of care not to use on the road a vehicle in a condition likely to give rise to an accident. Using a motor cycle with a smooth rear tyre in a condition likely to cause the vehicle to skid constitutes negligence.
Negligence — Apportionment of Liability — Contributory Negligence
Where both parties to a road traffic accident are found to have been negligent and both parties' negligence was a direct cause of the accident, the court may apportion liability equally between them.
Evidence — Recalling Witnesses — Discretion of Court — After Close of Evidence
The power under section 146(4) of the Evidence Act to permit a witness to be recalled for further examination and cross-examination in a civil case should be exercised only in the most exceptional circumstances where the evidence has been completed, and only if the judge is satisfied that the further evidence is likely to have a material effect on the case and that there is good reason why such further evidence was not given in the normal way.
Appeals — Retrial — Findings of Fact — Duty of Appellate Court
An appeal to the Court of Appeal from the High Court is by way of retrial. The appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should make due allowance for not having seen or heard the witnesses. The appellate court is not bound to follow the trial judge's findings of fact if it appears that the judge has clearly failed to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on demeanour is inconsistent with the evidence generally.

Legislation cited (2)

Cases cited (2)

  • Selle and another v Associated Motor Boat Company Ltd and others (1968) E.A. 123
  • Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 E.A.C.A. 270

Full judgment

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

Fernandes v Noronha (Civil Appeal No. 52 of 1968) [1968] EACA 3 (26 July 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.