132-NLR-NLR-V-48-KALANASURIYA-Appellant-and-JOHORAN-Inspector-of-police-Respondent.pdf
400
Kalanasuriya v. Johoran.
1947Present: Wijeyewardene S.PJ.
KALANASURIYA, Appellant, and JOHORAN (Inspector of Police),
Respondent.
S. C. 541—M. C. Panadure, 41,864.
Criminal Negligence—Charge of causing grievous hurt by negligent act—
Circumstances when burden of proof shifts to accused—Penal Code, s.
329.
The accused was charged, under section 329 of the Penal Code, withhaving caused grievous hurt by doing an act so negligently as toendanger human life or the personal safety of others.
The accused was driving a lorry, and the evidence showed that thelorry left the road, went a distance of fifty feet and injured a personstanding eight feet away from the edge of the road.
Held, that there was prima facie evidence of negligence casting uponthe accused the onus of proving that there was no negligence.
1 27 Crim. L. J. (1926) p. 386..
401
WIJEYEWARDENE S.P.J.—Kalanasuriya v. Johoran
PPEAL against a conviction from the Magistrate’? Court, Panadure.
M. M. Kumarakulasingham, for the accused, appellant.—There isno evidence of criminal negligence. See Andrews v. Director of PublicProsecutions ’, Akerele’s caseand the local cases which follow theprinciple laid down in those cases, namely, Wickremesinghe v. Obeysekere 1Lourensz v. Vyramuttu *, and The King v. Leighton
Section 74 of the Penal Code applies to the facts of this case.
Boyd Jayasuriya, C.C., for the Attorney-General.—The doctrine ofcriminal negligence was first formulated in Bateman’s caseThe Houseof Lords bowed to it but refused to apply it to the facts of Andrew’s case(supra). This doctrine is repugnant to and in conflict with the provisionsof our Penal Code, particularly sections 327 and 272. It is submittedthat the local cases which follow the rule in Bateman’s case (supra) shouldbe reconsidered.
The appellant, by season of his speed, found himself in a situationin which he lost control of the lorry. He is therefore answerable for theconsequences. See Rex v. Richard Timmins
The fact that the lorry left the road is evidence of negligence on thepart of the driver. He may explain the circumstances under which itcame to leave the road. Those circumstances may have been beyondhis control and may exculpate him, but he must prove their existence.See Ratnam Mudaliar v. Emperor Rex v. Wdlker", and (1931) CriminalLaw Journal, 1061.
July 18, 1947. Wijeyewardene S.P.J.—
The accused was charged with having caused grievous hurt to oneMrs. Eugene de Alwis by doing one or more of the negligent acts specifiedin the charge and with having committed, thereby, an offence punishableunder section 329 of the Penal Code.
The Magistrate convicted the accused on the charge and sentencedhim to six week’s rigorous imprisonment and cancelled his driving licencefor a period of two years.
Counsel for the accused submitted that the charge was defective, as itomitted to state that the negligence of the accused was such “ as toendanger human life or the personal safety of others”. This point hasnot been raised in the petition of appeal. The charge mentions section329 of the Penal Code. The omission referred to by the accused’s Counselcould not have misled the accused and I cannot hold that the convictionis vitiated by it (vide section 171 of the Criminal Procedure Code).
The accused was carrying a load of tea chests in his lorry at Panadure,in the direction of Galle, about eight o’clock in the morning. The widthof the tarred portion of the road is nearly twenty-one feet, and adjoiningthe tarred road on the left side, as one faces Galle, there is a grass verge
* (1937) A. C. 576.• (1946) 47 N. L. R. 283.
Cur. adv. vult.
(1943) (1) A. B. R. 367.
(1935) 37 N. L. R. 327.« (1940) 42 A7. L. R. 472.
• 19 Or. App. R. 8.
' 173 B. R. 221.
» (1934) A. I. R. 209.
■in B. R. 1213.
402WIJEYEWARDENE S.P.J.—Kalanasuriya v. Johor an
nearly eight feet in width. On the left boundary of the verge is a drainand beyond the drain is a barbed wire fence forming the boundary of anestate.
The accused’s lorry left the tarred road and went across the grass vergea distance of nearly fifty feet and was stopped after its impact with thebarbed wire fence. Mrs. de Alwis was standing near the barbed wirefence at the point of impact. She received a number of injuries includinga compound fracture of both bones of the lower third of her right leg.
According to the evidence given by the accused, he was driving thelorry about fifteen miles an hour. He saw a cyclist thirty yards aheadof him. He blew the horn and then the cyclist turned to the right andtried to cross the road. The right front mudguard of the lorry struckagainst the cycle, and the cyclist fell down. He swerved to his left toavoid running over the cyclist. In doing so, he applied the foot brakes.Then the lorry left the road and went across the grass verge to the fence.
I am unable to accept the accused’s evidence regarding the circum-stances in which Mrs. de Alwis was injured. On his evidence, the accusedhad covered nearly thirty yards in the time taken by the cyclist to go adistance of about ten feet. He could not have possibly covered thatdistance in that time even if his speed was forty miles an hour. Againhe showed the point X 2 in the sketch to the Subrlnspector of Policeas the place where he struck against the cycle. There were signs of brakemarks from X 2 for thirty-six feet in the direction of Colombo. If hisspeed was fifteen miles an hour and there was even a partial applicationof brakes for thirty-six feet he must have been going very slowly at X 2when he swerved to the left. If he then applied his foot brakes at X 2—as he says he did—it is difficult to understand how the lorry could havegone a distance of fifty feet after knocking down the cyclist. He does notstate that his brakes were defective. Again, though he says he began toapply the foot brakes at X 2, there were no brake marks from the pointX 2 to the point, nearly fifty feet away, where the lorry was foundUltimately.
This is a case where the mere happening of the accident affords “ primafacie evidence of negligence casting upon the party charged with it theonus of proving the contrary, for owing to the nature of the accident.res ipsa loquitur ” (Broom’s Legal Maxims, Seventh Edition, page 247).The accused’s lorry left the road, went a distance of fifty feet and injureda person standing eight feet away from the edge of the road. Theversion given by the accused is so inherently improbable and inconsistentthat it has to be rejected. The circumstances of the case show that theaccused must have driven his lorry at an inordinately excessive speed,and that he was guilty of a very high degree of negligence in the meansadopted by him to avoid the risk consequent on the speed of the lorry. I
I dismiss the appeal.
Appeal dismissed.