1994 PLP 1903 (CLC)

In the course of arguments on the 26th August, 1993, Mr. Nasir Maqsood, the learned counsel for the plaintiff, had initially contended, on the question of deduction to be made on account of personal expenses of the deceased, that such deduction has to be made on the basis that such personal expenses were Rs.300 per month. He had, however, ultimately conceded that deduction on account of such expenses has to be equal to one‑third of the gross income of the deceased for the relevant period; and had filed a statement showing that the amount of benefit lost to the plaintiff comes to Rs.8,40,

000. It was, therefore, intended to decree the suit for Rs.8,40,000" but, mistakenly, the suit was decreed for Rs.11,57,

000. The figure, "8,40,000, shall, therefore, be substituted for the figure "11,57,000" in the order dated the 26th August, 1993. The following are the reasons for the order: ISSUES NOS. 1 AND 3.‑‑ These two issues pertain to the alleged negligence of the defendant in (1) not properly maintaining the overhead wires and not providing safety measures and (2) not repairing the broken overhead wire without undue delay. They are, therefore, being considered together. Negligence in the sense of mere carelessness does not, of course, give rise to any cause of action; but carelessness assumes legal quality of negligence p where there is a duty to take care and where failure in that duty has caused damage. As held by Lord Macmillan in Donoghue v. Stevenson ((1932) AC 562):‑‑ "The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty." And, in the words of Lord Wright in Lochgelly Iron & Coal Co. v. M'Mullen ((1933) AC 1) negligence, in strict legal analysis means‑‑ "more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing." Duty to take care is, thus, an essential ingredient of the tort of negligence and unless such a duty is established, no case of actionable negligence can arise. "Duty" connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances; and it is a question of law whether or not a duty to take care exists in the circumstances of a given case. The principle for determining whether, in given circumstances, there was a duty to take care was formulated by Lord Atkin in the celebrated case of Donoghue v. Stevenson thus:‑‑ "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected 'by my act that I ought reasonably to have them in contemplation a$ being so affected when I am directing my mind to the acts or omissions which are called in question." The principle, thus, enunciated by Lord Atkin is now firmly established as a statement of general principle the application of which may be excluded only if there is a valid explanation for exclusion. In Dorset Yacht Co. v. Home Office, Lord Reid said that when a new point arises, the law of negligence depends on the principle that one should not ask whether it is coveted by authority but whether recognised principles apply to it; and went on to add:‑‑ "Donoghue v. Stevenson may be regarded as milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion." Applying the test of forseeability as enunciated in Donoghue v. Stevenson, to the facts of the present case, it is clear that the defendant who is manufacturer, supplier and distributor of electricity ought to have foreseen, as a reasonable man would do, that if the overhead electric wires are not maintained properly and sufficient safeguards are not provided and, further, steps are not taken in the event of the wire breaking, to ensure that it does not remain live, injury, or even death, would be caused to persons at any place where they have a right to be either for business or for pleasure. In Buckland v. Guildford Gas Light & Coke Co. ((1949) IKB, 410) high voltgage electric wires were routed across a field, immediately over the top of a tree, part of which had been cut down to permit the passage of wires. A girl of thirteen climbed the tree, when it was in full leaf, came into contact with the bare wires and was electrocuted. The electricity undertakers were held liable on the ground that they should have foreseen that some one might climb the tree and, being unable to see the wires nubilated by dense foliage, accidentally come into contact with them. The defendant, therefore, had a duty to take care that the overhead wires did not become a source of danger. The question, then, is whether the defendant neglected to perform its duty. The rule of evidence with regard to proof of negligence is stated in Halsbury, Volume 34, paragraph 54 (4th Edition) thus:‑‑‑ "The burden of proof in an action for damages for negligence rests primarily on the plaintiff who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible... However, if the plaintiff proves injury resulting from conduct which can be reasonably explained only by attributing to the defendant a breach of duty, or which points prima facie to a breach of duty on the defendant's part, the burden of proof is shifted, and it is then for the defendant to show that he has taken all reasonable precautions to avoid the act complained of." In the present case, the plaintiff has proved that the deceased died as a result of electrocution by a line of electric wire which had broken and was lying on the road unguarded and unattended. The death of the deceased in such circumstances pointed prima facie to failure on the part of the defendant to take care because overhead wires, if properly maintained, are not ordinarily expected to break down. The burden of proof, therefore, shifted to the defendant to show that it had taken all reasonable precautions to avoid the injury complained of. As will be seen presently, the defendant has failed to dischawge that burden. The rule that it is for the plaintiff to establish negligence is apt to cause hardship to a plaintiff where, because the thing which caused the injury is shown to be under the management or control of the defendant or the cause of the accident is solely within the knowledge of the defendant, it is not possible for him to prove precisely what was the relevant act or omission which gave E rise to the event which caused the accident. Such hardship is alleviated by the doctrine of res ipso loquitur which means that the things speak for themselves; and applies, as held by the Supreme Court in the‑ case of Pakistan Steel Mills Coporation'V. Abdul Habib (1993 SCMR 848 at page 856;‑‑‑ "Firstly, when the thing that inflicted the damage was under the sole management and control 'of the defendant and secondly that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to how or why the occurrence took place." It was there held that in such circumstances, as above, the defendants have to persuade the Court that the accident did not occur on account of their negligence. In the present case, the wires which caused the death were under the sole management and control of the defendant and it is the admitted position that the wire had broken and was lying on the road when the deceased came into contact with it and was electrocuted; and the accident, the cause of which is not known, was such as would not hake occurred in ordinary course of things if the defendant has used reasonable care. It was, therefore, for the defendants to show, by evidence, that the accident may have occurred without negligence on their part. The explanation of the defendant in the written statement is that the wires were broken due to heavy rain and that, "on receipt of information at about 3‑00 p.m., regarding broken wire, the gang was sent on site which isolated the broken wire from supply of electricity". The defendant's witnesses Ali Akbar Shah (D.W.1) has stated: "There were heavy rains and one of the electric wires had fallen down. The electric wire had collapsed due to heavy rains". The witness admittedly was concerned with emergency duties and had nothing to do with maintenance and supervision of overhead wires. He was, therefore, unable to say anything with regard to the maintenance and checking of the wires; and was also unable to explain why only one of the five wires broke down when rain was affecting all the five wires. Another witness of the defendant, Abdul Oadir (D.W. 2), deals with maintenance: He has stated that during normal season, but not during emergencies, overhead wires are checked; but he could not or did not produce any evidence or record of any checking having been carried out by the defendant. In view of this state of evidence, Mr. Habibur Rashid was constrained to rely almost entirely on the plea that the breakage of wire occurred due to heavy rains. However, no evidence of the quantity of rain which fell on the day in question has been produced and it is not enough merely to assert that there were heavy rains; nor has any explanation been offered of how and in what manner the rain affected the wire. The explanation is not reasonable and does not, therefore, have the effect of displacing the inference of negligence. Rain in itself is not such an unusual or violent phenomenon that reasonable precautions cannot be taken to guard against it; and it is not unknown that there are many parts of the world where in spite of extremely heavy rainfall the electric supply continues unaffected and electric wires do not break down. If, in Karachi, electric wires break at the first drop of rain, the fault, surely, is not in our stars but in the workings of organization concerned with supplying electricity and maintaining the wires and other installations necessary for the purpose. As for attending to the broken wire, the evidence on behalf of the plaintiff is that the wire had fallen at about 10‑00 a.m. vet, admittedly, it was not insulated 'till about 3‑00 p.m. The explanation of the defendant's witnesses is that the broken wire was insulated promptly upon receiving information. That explanation is not reasonable or sufficient because the duty of the defendant in this respect was an active, and not passive, one, so that they were required to take steps to ensure that information about broken and fallen wires was available within reasonable time and such wires were insulated without undue loss of time. The defendants were not entitled to wait until the information was volunteered to them. The defendant has, therefore, failed to show that the accident could have occurred without negligence on its part. Consequently, their negligence stands established. ISSUE No. 2: ‑‑ This issue was not pressed by Mr. Habibur Rashid. ISSUES NOS. 4, 5 AND 6.‑‑‑ These issues concern the quantum of damages to which the plaintiff is entitled. The plaintiff has claimed Rs.12,00,000 and Mr. Habibur Rashid contested the claim on three grounds. He submitted that since the income of the deceased was stated by the plaintiff's witness to be between Rs.3,000 and Rs.4,000 per month, such income should be held to be Rs.3,000 per month. However, the effect of the witness's statement is that their deceased earned minimum Rs.3,000 and maximum of Rs.4,Q00 per month. It is, therefore, reasonable to take the income of the deceased at the mean average figure of Rs.3,500 per month. The next objection rel4ted to the life expectancy of the plaintiff. Mr. Nisar Maqsood submitted that it should be taken as 70 years as has been done consistently in several decisions of this Court including the case reported in PLD 1993 Karachi

168. He (Habibur Rashid) did not contest the submission that the life span of a beneficiary may be assumed to be 70 years but submitted that, in view of the statement of the plaintiffs witness that the plaintiffs physical condition did not permit him to move about freely, it cannot be assumed in this case that the plaintiff can expect to live till the age of 70 years. Impediments in physical movement may be caused by several factors not affecting the general health and, consequently, the life span of a person subject to such impediments; and F there is no evidence that the infirmity from which the plaintiff suffers is of a life threatening nature. It is, therefore, reasonable to assume that the plaintiff can expect to live up to the age of 70 years. The last objection of Mr. Habibur Rashid was that there was no evidence on record with regard to the personal expenses of the deceased. It is averred in the plaint that the deceased spent Rs.300 per month for his personal expenses; but Mr. Nasir Maqsood, as stated above, fairly conceded that deduction to the extent of one‑third may be made on account of personal expenses of the deceased. At the time of the death of the deceased the plaintiff was 45 years old. He has, therefore, been deprived, by the death of the deceased, of pecuniary benefits for a period of 25 years. The amount of loss, calculated as follows, comes to Rs.8,40,000:. Gross income, on the basis of earnings at the time of death, at Rs.3,500 per month i.e. Rs.42,000 per annum, for 25 years . Rs.10,50,000.00 Less one‑third of the income, on account of personal expenses of the deceased . Rs.3,50,000.00 Balance:‑‑‑ Rs.7,00,000.00 Add 20% on the aggregate income on account of expected increase in income Rs.1.40,000.00 Total:‑‑ Rs.8,40,000.00 The plaintiff is, therefore, entitled to recover from the defendant Rs.8,40,000 with interest thereon at the rate of 14% per annum from the date of the suit till payment and costs of the suit. AA./S‑1073/K Suit decreed.