1990 PLP 404 (CLC)

In view of the above decisions and in these circumstances, we hold the suit under Fatal Accidents Act to be within limitation. The first contention is rejected. Whether the learned Single Judge was right in discarding the evidence of D.W.1 on the ground that he was not present at the time of loading. Whether the principle of res ipsa loquitur is applicable in the instant case, Coming to the second question, it may be observed that res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the Law of B Torts. In Ballard v. North British Railway Co. (1923 SC) 11L 43, Lord Shaw said, no body would have called it a principle if it had not been in Latin, while warning against the finding to magnify this expression into a rule of substantive law, Mr. Shaw conceded that this phrase "simply has place in the scheme of, and search for, causation upon which the mind sets itself working". In the same case Lord Dunedan emphasised: "it is not safe to take the remarks which have been made as to the principle of res ipsa loquitur in one class of cases and apply them indiscriminately to another class". Salmond on the Law of Torts (15th Edition, R.F.V. Heuston P.310) has suggested not to treat this maxim as a special rule of evidence. This is what he says: ??????????? " ????????? much of the confusion is due to a failure to appreciate that cases where res ipsa loquitur applies may vary enormously in the strength, significance and cogency of the res proved. There are many cases in which the most eminent judges have been divided on the question whether an inference of negligence could properly be drawn from the facts proved or admitted. Looked at in this light, it is not easy to see why the maxim should be treated as a special part of the law of evidence." Lord Dunedan, in Ballard's case (supra), thought it no more a rule of evidence than a means of shifting the onus to prove negligence. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a peculiar case, may themselves proclaim in concordant, clear, and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming from the defendants. To emphasize the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have management and control use due care. But according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come C into play and it has to be further satisfied that the event which caused accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which tell their own story" of being offspring of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head‑on collision on the wrong side of the road (see per Lord Normand in Barkway v. South Wales Transport Co., (1950) 1 A E R 392 at

399. Cream v. Smith (1965) 1 WLR 1454. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that res must not only be‑speak negligence, but pin it on the defendant. In Britannia Hygienic Laundry Company Ltd., v. John

1. Thornijcroft and Company Ltd. (1925‑26) 42 T L R 199 the plaintiffs sought to recover from the defendants, as special damage, the costs which they themselves had incurred in previous litigation in which they were the defendants. The repairs were carried out and the lorry was returned. Very shortly afterwards, while the lorry was in use on the highway, one of the wheels came off and damaged a van belonging to the plaintiff in the previous litigation, who brought an action in the county Court to recover damages against the plaintiffs. He won in the county Court, but lost in appeal. He was a man of straw and could not pay the costs incurred. The present plaintiffs sued the present defendants for damages for alleged breach of contract and negligence, and a common jury found that the defendants had been negligent, and .Mc Cardie, J., held that there was evidence on which the jury could so find. The accident was due to a defect in the axle, described as "fatigue" of the metal, a defect which could not be detected by external examination. There was no evidence that the defendants knew the age of the axle. It had come in evidence that the accident was due to a break of the stub axle, and it broke within a day or, two after the substantial overhaul. It broke due to fatigue of the metal and that no external examination during the overhaul could or would have disclosed the fact that the axle was fatigued. If was argued that in the course of the overhaul if the overhauler knew or ought to have known that the age of the stub axle exceeded a certain number of years and did not know anything about the anneating of it, he ought, as a matter of ordinary precaution, to have replaced it. Mr. Bankes, J. doubted the proposition as sound. It was observed:‑ "1 will say nothing about it except that I think that if that was part of the plaintiffs' case, it ought to have been submitted to the jury with a very careful direction. However, assuming that to be a sound proposition, it is an essential part of the proposition that the overhauler should either know or have reason to suppose that the particular stub axle was of an age exceeding the age limit, whether it is 10 years or any other number of years, and directly I heard the opening of this case and read the evidence, it occurred to me that there was no evidence at all that Messrs Thornycroft either knew or had reason to suppose that this was the original stub axle which had been put into this motor vehicle as long ago as 1912 or 1914. If that is so, the foundation of this part of the case disappears, and, in my opinion, that really is the only foundation that the plaintiffs can put forward, because the defence was distinct that the cause of this accident was the fatigue of the metal, and if an essential part of the cause of action is founded on that fact, it seems to me that evidence ought to have been before the jury that that would bring home to Messrs Thornycroft the essential knowledge as to the age of the stub axle:' ‑ "I think also that this is a case in which the rule res ipsa loquitur does not apply because it seems to me only to apply where the plaintiff, in complaining, has no knowledge or means of knowledge as to what the actual cause of an accident was, and all that he is in a position to say is that it occurred in reference to a matter of which the person of whom the plaintiff is complaining had full control and full knowledge, and the thing of which he is complaining would not have happened if the person complained of had exercised ordinary care". "The cause of the actual occurrence, the breaking of the stub axle, was, it was common ground between the parties, generally referred to as "fatigue" of the metal; that is to say, a. condition of the metal which results from the particular stresses and strains to which, during a considerable period,.it has been exposed. It was further proved beyond doubt that there are no means by which from an external examination of the metal, it is possible to ascertain that condition which results from, or is generally referred to, as 'fatigue". The only way by which it can be ascertained is to break the metal up. There clearly, therefore, was no evidence that Messrs Thornycroft were guilty of any negligence in failing to discover that particular condition of the metal, which, it was common ground, was the actual cause of the breaking of this stub axle". "I think that the idea that res ipsa loquitur applies to this case because the lorry had been recently overhauled by Messrs Thornycroft, and then broke down almost directly, is erroneous. The rule in question has no application to this case". "If there is a flaw which comes to the outside, you can discover that by inspection, but "fatigue", which is in the interior of the metal, you cannot discover by inspection, and you therefore start this case with this, that this stub axle broke from a cause which could not be discovered from inspection by the most careful external examination. Now, once you get that, it seems to me that the whole idea of res ipsa loquitur is destroyed. The doctrine of res ipsa loquitur, as I understand it, is that: where you have a subject matter entirely under the control of one party and something happens while it is under the control of that party, which would not in the ordinary course of things happen without negligence, you may presume negligence from the mere fact that it happens, because such a thing could not happen without negligence. Of course, there is the case where a cask tumbled out of the door of a warehouse on to a passer‑by, and it was said against the defendant: you are in sole control of this warehouse, and in the ordinary course of things casks do not tumble out of warehouses on to the heads of passers‑by unless somebody has been careless. If nothing else is proved about how this cask tumbled out, res ipsa loquitur, the jury are entitled to find that it tumbled out by negligence, that being the more probable way in which it happened. In this case, as I understand it, the jury were invited to say res ipsa loquitur, this thing broke down two days after the plaintiffs had it. It may have broken down because there was negligence in the annealing. The fact that it broke down, therefore, is a fact from which you can find there was negligence in annealing, though there is not any evidence of it, but in this case, when the thing broke down, it was not under the sole control of the defendants, it was on a road where any sort of jolt may have happened. It is proved to have broken down from "fatigue", which is a question of interior crystallization which cannot be discovered by reasonable care. There is no greater probability that it broke down otherwise than by "fatigue", and the materials for the principle res ipsa loquitur seem to me to be entirely wanting in this case, and that is why I do not think there was any evidence on which the jury could find negligence, and the learned Judge misdirected them when he told them that by the mere happening of the accident they might find that it happened through negligence". "The relevant part of the evidence of P.W. 2 (Ext. 7) is as follows:‑ "On 23‑7‑1976 1 was asked by defendant No.l to load some goods on the truck from Malir. I took my truck to Malir. We reached there at 11 or 12 noon. I was feeling sleepy and so I asked the two cleaners and the driver to load the consignment on the truck and I slept in a hotel nearby. In all 23 drums were loaded in the truck. I do not know what were the contents of the drums". Later on he stated:‑ "Nasim Khan used to sit or sleep in a small improvised cabin made at the top of the driver's seat. On 26‑7‑1976 we reached Pattoki and there I found that some of the drums were leaking and I saw 2 drums sticking to each other. There was a very pungent smell also coming out of the drums. I asked Ilyas and Nasim to come down and have a look. They also found the smell very strong and both of them said that they were feeling like vomitting. We made certain efforts to stop the leakage but without any success. In the circumstances, we could do nothing but to go ahead. We started again towards Lahore." "It is incorrect that at the time the trucks were loaded I was informed about the exact contents of the drums. We only count the number of boxes or items. When we have confidence on the transport agency or the consignor we do not ask about the contents of the items to be carried by our truck otherwise we ask about the contents". The appellants examined Rana Muhammad Yousuf Under Secretary of the appellants in support of their case. In his examination‑in‑chief he stated:‑ "1n 1975 I had sent solvirex technical from Karachi to Lahore by truck in question as mentioned in the plaint, through a contractor, M/s. Al‑Amin Goods Transport Company. 23 drums were loaded in the said truck. The truck started its journey on or about 23rd July, 1975. The goods were loaded in the presence of the representative of the said contractor. Loading was the responsibility of the contractor. The drum contained pesticides, which are poisons. We had pasted on each drum the insignia showing skull and cross bones, which means dangerous and poisonous. The word poison was written on the drums. The drums used by us belonged to the department." "There was no leakage at the time of loading drums. I had told the driver and the person accompanying him that the material contained in the drums is poison. We received no complaint as to leakage or otherwise after the consignment reached Lahore. "The consignment was highly poisonous in its nature. If it leaks its smell can be felt from a distance but death cannot occur unless it goes into the body. There was no specific direction to us or the rule that the consignment in view of its nature should have been sent by container and not in an open truck. We have been sending such consignments by Railway wagon as well as by trucks. I see Exhibits 7/1 and 7/2, the cause of death has been shown by the doctor (poisoning D.D.T). Nothing has been mentioned on Ext. 8/1 that the consignment is poisonous. It also does not contain any warning as dangerous". He further stated in cross‑examination: "I was the only official who was present at the time of loading as. I was incharge of the store". Firstly 23 drums were not under the management of the appellants but the same were loaded in the truck of respondent No.2. Secondly the drums were in perfect condition at the time of loading. Thirdly the truck left Karachi for Lahore on 23‑7‑1975 and on 26‑7‑1975 the leakage was discovered. In this view of the matter the principle laid down in 42 TLR 199 is applicable to the facts of the p instant case. We are of view that the maxim res ipsa loquitur is not applicable in the instant case. The learned Single Judge has noted the submission of Mr. Munawwar Ghani which is as follows:‑‑ "Mr. Munawar Ghani, Advocate appeared for the defendant No.l and has submitted that defendant No.l Al‑Amin Goods Transport Agency cannot be held liable for the said accident. According to him the goods belonged to defendant No.2. The same were booked by defendant No.3 from Karachi. It was the duty of defendants No.2 and 3 to have taken full protective measures against any danger from the said poison and to have warned the plaintiff No.2 and the three persons accompanying him of the consequences and the risk from the transportation of the said goods. They had not even warned defendant No.l about the risks involved in the transport of the said consignment. Since he was unaware of the said danger himself how was he expected to warn others of the same. No evidence has been led by the defendants Nos.2 and 3 which can show that defendant No.1 was made aware of the risk surrounding the transport of the said consignment. The contention of Mr. Munawar Ghani appears to be sound and reasonable. I therefore hold that defendants Nos.2 and 3 had not taken necessary precautions and had not warned the drivers, conductors or even the defendant No.l about the danger surrounding the transport of the consignment:" The learned Single Judge while discarding the evidence of D.W. 1 has observed as follows:‑ "Normally senior officers are not present at the time of loading of Government consignments. All such loading is done by labourers and is at the most supervised by junior ministerial staff. The loading was done in the store of the defendants Nos.2 and

3. The claim of the witness that he was the only officer present at the time of loading and no other official was present, in itself shows that the claim is not believable". With respect to the learned Single Judge, the above observations are not proper for more than one reason. Firstly the perusal of P.W. 2's evidence shows that he was not present at the time of loading. Secondly the other driver Syed Hawaz Khan and two cleaners namely, Nasim Khan and Ilyas were present at the time of loading and he asked them to load the consignment. In his cross?examination he admitted that one officer was present at the time of loading. Secondly, D.W.1 was posted as Assistant Director (Technical), Department of Agriculture, Government of Punjab at Malir city at the time of incident from 1972 to 1978. Thirdly, the loading was done at Malir City in appellants' store premises. Fourthly, he was incharge of the store at the time of loading. Fifthly the consignment was loaded on 23‑7‑1975 at store premises, Malir City and at that time the smell was not felt by D.W.

2. Sixthly, the truck reached Pattoki on 26‑7‑1975 and there P.W. 2 found that some of the drums were leaking and he saw two drums sticking to each other. Seventhly, he asked Ilyas and Nasim Khan who were sleeping in a small improvised cabin made at the top of driver's seat, to come down and have a look. The respondent No.2 was not present at the time of loading. The proprietor of respondent No.3 was also not present at the time of loading. The representative of respondent No.3 was present at the time of loading. The respondent No.2 did not produce the other driver Muhammad Hawaz Khan and similarly the respondent No.3 did not present the representative who was present at the time of loading. A perusal of written statement of respondent No.3 would show that necessary instructions were given not only to the driver but to the cleaners. In Barkway v. South Wales Transport Co., Ltd. (1948)) 2 A E R 460), Asquith, L.J. stated, by reference to the facts before him, the position as to the onus of proof in such cases as follows:‑ "If the defendants' omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption. It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre‑burst, since a tyre‑burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co., Ltd, where not a tyre‑burst but a skid was involved. To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b), if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres:'. The dictum laid down was followed in Moore v. R. Fox & Sons (1956) 1 AER

182. In Farrant v. Barnes (1862) 11 C B N S 553" 31 L.J.C.P. 137:142 E.R. 912, the facts were that defendant wished to send a carboy, the contents of which were of a dangerous character, to Croydon, and he, by his foreman; desired Rayner to take it so that it might go by the Croydon carrier. Upon which Rayner applied to the plaintiff, and the carboy was, therefore, in effect delivered by the defendant to the plaintiff, as much as if there had been an actual application by the defendant to the plaintiff to take and carry the article to Croydon. The defendant handed it to the plaintiff (the servant) of a Croydon carrier, without communicating to him its dangerous nature. The carboy was a large glass bottle, packed in a wicker basket. It was labelled "Acid", and Rayner told the plaintiff that it contained acid, but the plaintiff was not informed that it was nitric acid or that it was acid of a dangerous nature. The plaintiff duly arrived at the Elephant and Castle with the carboy in his cart, and there, when carrying the carboy on his back, in the act of removing it from the one cart to the other, the bottle burst, and the acid escaping ran over the plaintiff and did the injury complained of. Evidence was given on the part of the defendant that the carboy was properly packed, and that it left his premises sound and in good condition, and that in addition to the large label stating the contents to be acid, there was a small one stating that the carboy contained "acid, nitric". The jury found, in reply to questions left to them by Blackburn, J., that the defendant did not take reasonable precaution to make the carrier's servants aware that the acid was dangerous; that the plaintiff was, in fact, ignorant of the dangerous nature of the article, and there was no want of skill on his part, but that it was not proved that the article was improperly packed. The defendant went in appeal. Earle, CJ. said (1950) 2 A E R 78: "The application to the plaintiff being an application to take charge of and to carry and deliver a dangerous article, it was the duty of the defendant, who knew the danger, to take care that the dangerous character of the article should be made known to all persons who were to be concerned in the carriage of it. The jury have found that he did not do so. There was no evidence as to how the accident occurred‑‑‑probably it was from the explosive nature of the article. But, be that as it may, if notice had been given of the dangerous character of the article, greater precaution possibly might have been used in the handling of it. I think the plaintiff is brought into such direct contact with the defendant that the distinction relied on to take the case out of the principle upon which the decision in Langridge v. Levy proceeded fails. The defendant, knowing the dangerous character of the article, and omitting to give notice of it to the plaintiff, so that he might exercise his discretion as to whether he would take it or not, was guilty of a clear breach of duty". Willes, J. said: "I apprehend that, as a matter of legal duty, a person who gives another dangerous goods to carry, goods which require more care and caution than ordinary merchandise, and which are likely in the absence of such caution to injure persons handling them, is bound to give notice of their dangerous character to the party employed to carry them, and is liable for the consequences which are likely to ensue from the omission to give such notice". In Hodge & Sons v. Anglo‑American Oil Company and D.T. Miller & Co., and Will Mott and others v. Same (1922) 12 Lloyd's Law Reports 183) the facts were that a barge, the property of the Anglo‑American Oil Co., was used by the Company for the carriage of petrol and Bankes, L.J. came to the conclusion that, owing to the presence of petrol in it, the barge was a dangerous thing. The facts set out .in the head note show that the plaintiffs were repairers and wharf owners at Millwall, who appealed from a judgment given in favour of the defendants, and Messrs Donald Millers & Co., barge repairers of London, in an action by the plaintiffs claiming in respect of damage, arising out of an explosion on the Anglo‑American Company's Oil tank barge warwick, at Millwall, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by Miller & Co. the question was whether or not sufficient warning had been given of the condition of the barge, the condition being known to Messrs Miller, but there being controversy whether or not it was known by Messrs Hodge, Bankes L.J. in the course of his judgment, said:‑ "It is in these circumstances that the question of liability arises. The Anglo? American Oil Co. were, in my opinion, under a double duty, (a) the duty of using reasonable means for securing the efficient cleaning out of the tank, and (b) the duty of giving any necessary warning of the dangerous character of the tank even after a proper and sufficient cleaning. The first duty, in my opinion, extended to all those who necessarily came into contact with the tank in the course of carrying out the repairs, including therefore the plaintiff Willmott. With regard to the second duty, a warning would not, in my opinion, be required where the person who would otherwise be entitled to warning was already aware of the danger, or who might reasonably be assumed to be aware of it. Messrs Miller obviously required no warning; they were perfectly well aware of the danger. Messrs Hodges were in relation to the Anglo‑American Oil Co. aware that the barge was being sent to Messrs Hodges for repair. If so, Messrs Hodges would be entitled to a warning unless they, like Messrs Miller, must be taken to have been aware of the danger. Having regard to what must be the state of knowledge among ship and barge repairers on the Thames as to the danger of dealing with cleaned petrol tanks, I think that the Anglo‑American Oil Co. were entitled to assume that Messrs Hodges needed no warning as to that danger. It would appear from the evidence of Messrs Hodges' manager that he was in fact sufficiently aware of the danger of working on the barge to know that it was wrong to let the men go to work before the tank was properly ventilated;" "The law, therefore, seems to be: (1) That if the barge has carried petrol is an article dangerous in itself, it is the duty of the owners to take proper and reasonable precautions to prevent its doing damage to people likely to come into contact with it. These precautions may be fulfilled by entrusting it to a competent person with reasonable warning of its dangerous character, if that danger is not obvious. If such precautions are not taken, the owner will be liable to third persons with whom he has no contract for damage done by the barge, which they could not have avoided with reasonable care:" Atkin, L.J. dissenting with regard to one aspect of the case, said: "It becomes unnecessary in this view to decide the question whether, assuming that there was only a duty to warn, that duty was excused on the ground that the employer of the injured men must be deemed to have known that the barge was in a dangerous condition, and therefore there was no duty to warn him or his men. It is probably a question of fact in each case whether a duty to warn is effectively performed by a warning to an employer. In some cases that may be the only reasonable warning possible; or, at any rate, a sufficient warning; in other cases it may well be that notice to the employer should be supplemented, as, for instance, where a dangerous chattel is being sent on a long land transit, e.g., by rail, and may be handled by many of the employers' servants working at a great distance from him". In Homes v. Ashford and others (1950) 2 A E R 76, the facts of the case were that a hairdresser treated the plaintiff's hair with a dye, and as a result the plaintiff contracted dermatitis. The dye had been delivered to the hairdresser in labelled bottles together with a small brochure of instructions. Both the labels and the brochure contained a warning that the dye might be dangerous to certain skins, ,and a recommendation that a test should be made before it was used. The hairdresser had read the labels and the brochure and was aware of the danger, but he made no test and did not warn the plaintiff. The plaintiff claimed damages against the dresser and the manufacturers, and was awarded against both. On appeal by the manufacturers it was held by Tucker, L.J.: "In the present case the substance was not entrusted to a competent person, but it was supplied to a hairdresser with the knowledge of the manufacturers, and it must have been in the contemplation of the manufacturers supplying these goods to hairdressers that hairdressers may be expected to interpose their judgment and reason whether they are going to use a hair dye or not. In my view, if they give a warning which, if read by a hairdresser, is sufficient to intimate him the potential dangers of the substance with which he is going to deal, that is all that can be expected of them. I think it would be unreasonable and impossible to expect that they should give warning in such form that it must come to the knowledge of the particular customer who is going to be treated. Counsel for the plaintiff says they must take reasonable steps to see that it will come to the notice of any customer. I cannot contemplate any steps which could be calculated to bring a matter of this kind to the knowledge of any person who is treated with the preparation. The most that can be expected of the manufacturers of goods of this kind is to see that the hairdresser is sufficiently warned". "I think they indicate sufficiently to any person who reads them, at any rate to a reasonable hairdresser, that the substance he is concerned with is of the nature alleged in the statement of claim, namely, that it is a dye which is "a dangerous article in that when applied to the heads of certain persons it would or might cause acute dermatitis". I think that that quality of the dye "Inecto" was sufficiently brought to the notice of the first defendant by the notices which have been put in evidence." In Anglo‑Celtic Shipping Company Limited v. Elliot and Jaffery and others (1925‑26) Vol.42 T.L.R. 297, the facts were that the plaintiffs, who were ~` the owners of a steamships, sent her to the first defendant, a firm of ship repairers, for the cleaning of the condenser, which was partly made of cast iron, and told them to use a cleaning fluid, known as the "pluperfect liquid", which was manufactured by the second defendants. This fluid, which was a secret preparation and had property, unknown to the plaintiffs and to the first defendants, giving off hydrogen if it was in contact with cast iron, was used and gave off hydrogen which made an explosive mixture in contact with the air. A workman then went to the spot with a lighted candle, and an explosion occurred, doing damage to the ship. The first defendants repaired the damage, and the plaintiffs claimed a declaration that they were not liable to pay for the repair, and damages for loss of use of the ship during the repair; and alternatively the plaintiffs claimed damages against the second defendants. Roche, J., said: "the question was whether either the first or the second defendants were liable to the plaintiffs for the cost of the repairs and for detention of the ship. With regard to the first defendants, the onus was on a bailee to explain how it was that he had failed to redeliver the thing bailed in a condition as good as that in which it was recieved. Here the first defendants had given an explanation, and he held that on the facts they were not liable. The plaintiffs' superintendent told them all that he knew about the liquid, and they were not under any obligation in the circumstances to find out anything more for themselves." "As to the second defendants, the law where a dangerous thing had been put into circulation had often been discussed, and he would not discuss it further; he agreed with an observation of Lord Justice Scrutton in a recent case that if it was to be discussed again it should be in the House of Lords. It was sufficient for him to assume the truth of the proposition that if the thing sold was of a dangerous nature a warning ought to be given. It was not necessary to discuss the case where an article sold did not belong to a class of things which were dangerous in themselves, but was dangerous because of some defect in the individual article. Nor was it necessary here to consider any duty to take care in other respects besides giving warning. He was satisfied that the pluperfect liquid was dangerous of itself; it was sold under a fancy name, its composition was not disclosed, and it was disguised by a particular smell which was purposely imparted to it. The different analysis which had been given in evidence suggested that there were irregularities in manufacture. And not only was the article dangerous in itself, but the instructions failed to give any adequate warning. So there must be judgment for the plaintiffs as against the second defendants". The drums leaked and smell was felt, i.e. res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of defendants, and the plaintiff succeeds unless the defendants can rebut this presumption. In the instant case the appellants rebutted the presumption. Firstly at the time of E loading drums were not leaking. Secondly drums contained pesticides which are poisonous was duly disclosed to the co‑driver and cleaners. Thirdly the insignia showing skull and cross bones was duly pasted on each drum. Fourthly the word `poison' was written on the drums. Mr. Munawwar Ghani, learned counsel for the respondent No.3 submitted that the cause against Mohammad Habib Siddique did not survive and, therefore, the suit had abated. It is not in dispute that Mohammad Habib Siddique was the sole proprietor of Al‑Amin Goods Transport Agency. It is also not in dispute that the appellants awarded him the contract for transportation of drums to Lahore. The respondents alleged that respondent No.3 as well as the appellants were negligent in loading 23 were drums on the truck. Muhammad Habib Siddique died during? the pendency of suit and his legal representatives were brought on record. The Law of Tort as administered in England is administered in the Province of Sind under Regulation 26 of Sind Regulation 11 of 1827 as a rule of justice, equity and good conscience. The maxim actio personalis mortum cum F persona is a part of the Law of Pakistan and is enforced upon grounds of justice, equity and good conscience. Reference is made to RM, P.K.P. AR. Arurachalam? Chettiar N. Subramanian Chatiar (died) and another (A I R 1958 Madras 143). In another case of Baboolal v. Ramlal Nandran (A I R 1952 Nagpur 408) it was held that "it is well‑established rule of common law that if an injury were done either? to the person or to the property of another, for which unliquidated damages only could be recovered in satisfaction, the action dies with the person to whom or by whom the wrong was done except where a remedy is given to or against the personal representatives by the Statute Law. The relevant provisions of law are contained in Order XXII Rules 1 and 4 and the definition of the word "Legal Representative" contained in Section 2 (1) of the Civil Procedure Code. Order XXII Rule 1 runs thus: "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." "Procedure in case of death of one of several defendants or of sole defendant‑‑(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants? alone (or on receipt of an intimation of the death? the person nominated by him for this purpose under Rule 13, Order VIII) or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) ......... (3) ......... ??????????? (4) ?????? " (11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:' On a plain reading of the above provisions, it appears to be clear to us that two conditions must be satisfied before legal representatives of Mohammad Habib Siddique were allowed to defend the suit in the place of the original defendant, namely, firstly that the right to sue as disclosed in the plaint survives even after death of Mohammad Habib Siddique and secondly, that the respondents Nos.3 (a) to 3 (d) are the legal representatives of deceased Mohammad Habib Siddique within the meaning of Section 2 (11), Civil Procedure Code. After a careful reading of the plaint, as a whole, we are definitely of the view that the action brought by the respondents 1 and 2 was on the basis of a personal wrong of the deceased Mohammad Habib Siddique and the present appellants. In a case reported in P L D 1967 Karachi 755, Mr. A.S. Farooqui, J. held as under:‑ "The damages are claimed not on the ground that the deceased Sajan had misappropriated money or derived any material gain but upon the ground that in the performance of his duty he was negligent. This duty involved the auditing of the accounts maintained by the Bank and doing such other things as an auditor might require to do". The learned Judge had also held that the Common Law rule was applied in all its strictness by Courts in Pakistan and the applicability of the maxim to Pakistan is recognised. Winfield on Tort, 8th Edition at page 605 has pointed out that at Common Law there are two chief exceptions to the rule and they are: "(a) Actions on contract. This was recognised to be law at least as early as 1611, "for death is no discharge of ...debt; and it would be a great defect in our law, that no remedy should be given for it". (b)??????? Enrichment of tortfeasor's estate. Where property, or the proceeds or value of property, belonging to the plaintiff have been appropriated by a person since deceased and have been added to his own estate or moneys, the plaintiff can sue the deceased's personal representatives (executors or administrators) for the recovery of such property, its proceeds or value". The general result of the application of the aforesaid common law maxim is stated in paragraph 1567 of Halsbury's Laws of England, IVth Edition, Volume 1 at page 796, wherein it is said that the result of the application of the said maxim was that the representative could not sue or be sued for a wrong committed against or by the deceased for which unliquidated damages alone would be recoverable. The exception to that rule is stated to be in a case against the estate of the deceased person where property or the proceeds or value of the property belonging to another had been appropriated by the deceased person and added to his own estate or money. In such cases the action though arising out of a wrongful act, did not die with the person. The application of the maxim in England has been modified by the Law Reform (Miscellaneous Provisions) Act, 1934, which has also specified, the exceptions whereby causes of action for defamation, seduction and adultery would still die with the wrongdoer. However, as far as we are concerned, the Statute Law of England is not applicable in this country so that the maxim would still be applied on principles of equity, justice and conscience except so far as it is modified or altered by the Statute Law of this country. From the above discussion, it is clear that the meaning of this maxim is that a personal action dies with the person, the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or the wrongdoer brings an end to the cause of action and the right to sue or be sued for gets extinguished. But this is subject to a qualification viz, where a tortfeasor's I estate is benefited by the wrong‑done, an action would be against the representatives of a wrongdoer. The essence of the maxim applies to an action brought for damages for a personal wrong. In the instant case, undoubtedly the action is brought by the respondents Nos.l and 2 on the foot of a personal wrong of Mohammad Habib Siddique and the present appellants. Unless it is shown that the estate of the deceased wrongdoer was benefited by the tortious act committed by him, the right to sue does not survive because the personal action is said to die with the person. It is no doubt true, in the present case, the suit against the sole proprietor of Al‑Amin Transport Agency and his legal representatives was dismissed, in the view we have taken above, the suit abated against him and the right to sue him got extinguished and the appellants remain in the picture. A perusal of the evidence of D.W.1 would show that the appellants had exercised due care as the appellants duly informed the co‑driver and two cleaners and representative about the contents of the drums. We hold that the respondents 2 and 3 have not established negligence against the appellants. The finding on this issue is set aside. For all these reasons the High Court Appeal is allowed and the impugned judgment is set aside. The suit is dismissed against the appellants and abated against the respondents Nos. 3, 3 (a) to 3 (d). In the circumstances of the case, the parties are directed to bear their own costs. A.A./G‑148/K???????????????????????????????????????????????? ??????????????????????????????????????????????????????????? Appeal allowed.