BLANCHE EDITH CATES Vs. MONGINI BROS

JUDGEMENT

(1.) The plaintiff, Blanche Edith Cates, a qualified midwife and sick nurse, has filed this suit against Mongini Brothers, owners of a restaurant in Bombay, for damages for the injuries sustained by her. It appears that on the 4th May 1916 the plaintiff and her daughter went to defendants restaurant at about 1-30 p. m. for lunch. They took their seats at a table whereupon a waiter switched on the electric fan which was suspended from the ceiling over that table. The plaintiff not requiring the fan asked the waiter to stop it and as the waiter switched it off it fell down with the motor dynamo and severely injured her left hand and shoulder. The plaintiff alleged that the fall of the fan must have been due to negligence for which the defendants are responsible. After she received the injuries it appears that the plaintiff was under skilled medical treatment for a month but in spite of such treatment the injury to her left hand permanently affected her use of it. The fingers of that hand had thickened and the joints had become stiff and some of the fingers had been fractured with the result that she was unable to use her left hand. She was thus not only incapacitated from carrying on her profession but was further inconvenienced by being deprived of the use of her left hand. Before receiving the injuries the plaintiff alleges that she earned as a midwife and nurse about Rs. 2,000 a year. She also said she suffered great physical and mental pain at the time she received the injuries and a month thereafter. Under the circumstances she claimed Rs. 15,000 for damages and she has arrived at that figure according to following particulars. 1. On account of bodily injury sustained, the pain undergone and shattering of plaintiff s health, Rs. 7,500.

(2.) On account of medical expenses incurred, Rs. 300.

(3.) On account of pecuniary loss for not being able to carry on her profession for the rest of her life, Rs. 7,200. 2. The defendants while admitting the fall of the fan denied that it was due to any negligence on their part. They said that the fall was entirely due to an accident for which they were not in any way legally liable to the plaintiff; however much they regretted the injury caused to the plaintiff s hand. The defendants said that the accident was due to some latent flaw in the material of the suspension rod which could not be seen and could not have been discovered by the exercise of due diligence and skill. Immediately after the accident it appears that the defendants sent the plaintiff with an assistant of theirs to the E.G. Hospital where the plaintiff s hand was. dressed and she thereafter voluntarily left the hospital to go home. The next day after the accident the plaintiff, her husband and daughter and some relations called at the defendants restaurant and the plaintiff informed the defendants that her hand had been dressed and her husband told the defendants that he was not a rich man and the defendants without admitting their liability and out of sympathy for her offered to share the medical expenses that might be incurred by her. A week or ten days after the plaiptiff s husband called again and informed the defendants that the plaintiff was going to Uran and that she would be attended to by a, doctor there. At that time the husband had a piece of paper in his hand in which there appeared certain figures which showed a total of about Rs. 220 as the expenses incurred The defendants on that occasion offered to contribute Rs. 150 without admitting any legal liability on their part. The following evening the husband called again and asked for Rs. 300. The defendants told him that the amount was excessive and again offered Rs. 150 without prejudice. The offer, however, was not accepted and the husband left the place. The defendants further disputed the amount of the damages and did not admit that the earnings were Rs. 2,000 a year as alleged by her. They further contended that the injury to the plaintiff was not of such a nature as would in capacitate her from carrying on her profession for life and that the plaintiff had very much exaggerated her injuries. Hence the present suit. The following issues were raised:- 1. Whether the fall of the fan was due to any negligence on the part of the defendants as alleged in para 3 of the plaint ? 2. Whether the fall was not due to the latent flaw in the material of suspension rod which could not be seen or could not be discovered by the exercise of due diligence as alleged in para 3 of the written statement ? 3. Whether the defendants are liable in any and if so in what damages ? 3. On this counsel for the plaintiff contended before me that the onus lay on the defendants to prove that there was no negligence on their part, whilst counsel for the defendants contend that the onus lay on the plaintiff. The burden of proof in an action for damages for negligence rests primarily upon the plaintiff who in order to maintain the action must show that he was injured by an act or omission for which the defendant is in law responsible (see Hammack v. White (1862) 11 C.B.N.S. 588 and Manzoni v. Douglas (1880) 6 Q.B.D. 145) except in the cases where law presumes liability from an act or omission immediately upon proof of its occurrence. That is to say, an exception to the general rule that the burden of proof for the alleged negligence is in the first instance on the plaintiff occurs whenever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendants negligence: see Byrne v. Boadle (1863) 2 H. & C. 722 and Scott v. London Dock Co. (1865) 3 H. & C. 596. To these cases the maxim " res ipsa loquitur" applies. But in cases where the injury is caused by the use of tackle or machinery for which the defendant is responsible there is no immediate inference that the defendant is at fault: Mackfarelane v. Thomson (1884) 22 Sc.L.R. 179 negligence? The Halsbury s Laws of England, Vol. XXI, p. 441. On this I held that the onus was on the plaintiff. But if the injury is traced directly to some defect in the tackle or machinery then the defendant must show that the defect was one for which he is not to blame: see Walker v. Olsen (1882) 9 R. (Ct. of Sess.) 946. Therefore the question which I havo to consider is, are the defendants, Mongini Brothers, guilty of any negligence? The fan in question was originally purchased from Jost & Co. It was of German make. It weighed about 50 lbs. and had four wooden blades. This was first fitted up about nine years ago on the ground floor premises of the defendants in Church Gate Street. When the defendants extended their premises to the first floor also the original rod was found short so Messrs. Osier and Co., who had the installation, supplied another rod 31/2 ft. long, one in dispute and fixed the same fan to it. It remained there till March 1914 when it was removed to Esplanade Road premises by Cromptons and it remained there till the accident. At first Messrs. Crompton and Co. looked after the fans at Mongini s. But since May 1915 this contract was given to Messrs. Osier and Co., whose men went once a week on a Saturday to examine the fans. The rod in question was an iron gas pipe a slot being diametrically cut at the end 7/32" and a 1/8" split pin passed through the whole drilled in the fan shield and passed through the slot. There was 3/32" for play between the slot and pin. How does the plaintiff attempt to prove that the defendants were guilty of negligence? They have called two expert witnesses. The first is one Mr. R.G. Hyams, Assistant Electrical Engineer, Public Works Department. He in his evidence says: I have seen thousands of fans; never seen a fan like the one in suit with a slot in the shaft. The method of boring a slot is not as good as a method of boring a hole. I am not surprised-at the break it was to be expected-owing to the thinness of the metal. Pipe is too thin for the weight of the fan. Ordinary mode of suspension is pin through a hole. Owing to the extreme thinness of the metal the break took place. This is the chief cause, no other cause. If the metal had been of proper thickness and the slot had not been then most probably accident would not have occurred. I cannot see any defect in the metal of the rod. I would have noticed the defect if I had seen immediately after the break. I consider it unsafe for a person to use a fan like one in suit because metal of the rod is too thin. This is the primary cause. A fan with a hole and pin is much stronger.