M. Madhavan Nair, J.
1. Appeal by plaintiffs.
2. The 1st plaintiff, a boy of 6 years sues, through his father and next friend the 2nd plaintiff, for damages for personal injuries sustained on noon, April 29, 1956, when he was knocked down at Ahvaye by the 1st defendant's lorry driven by the 2nd defendant. He was taken to the Ahvaye Hospital and thence to the Bava Memorial Nursing Home, Ernakulam he was unconscious even when he was taken to the Nursing Home where he was treated for 56 days at a post of Rs. 581 as. 4 p. 6. When at the Nursing Home a senior Doctor of the State Medical Service, Dr. A. K. Menon. was called in for consultation and was paid fee. Claiming Rs. 1,000 also as general damages this suit is laid for Rs. 1,681 as. 4 p. 6.
The 2nd defendant remained ex parte. The 1st defendant denied liability attributing negligence of the 1st plaintiff as the sole cause of the accident. Though the lorry had been insured with tho Slate Insurance Department against third parly risks, no information of the accident was given to it or even to the police by the defendants.
The evidence is that soon after 11-30 a.m. on Ihc day of the accident, 20 to 25 boys from the nearby Arabic School gathered on the roadside to cross it. They waited to see a bus that was coming down from the south to pass. The 1st defendant's lorry was coming 75 to 100 yards behind the bus at a speed of 25 to 30 miles per hour. As soon as the bus passed, the hoys began to run across the road, and some had crossed the road when the accident took place.
3. Munsif Mr. G. Kurien held: 'Since the road was straight at that place by about a furlong distance and since the 2nd defendant was driving the lorry from south to north and there was a gap of about 76 lo 100 yards in between the bus and the lorry, 2nd defendant, if he had exercised reasonable diligence or care, could have pulled up the lorry by applying the brakes and avoided the danger. At any rate, when be found that about 20 to 25 boys were wailing there to cross the road, as a driver be must have been put on the alert. He could have reduced the speed and driven the lorry in such a manner as to have it under control if any mishap is going to happen by the crossing of the boys across the road. In the peculiar circumstances of this rase, it is clear that the 2nd defendant had omitted to do something which a reasonable man guided upon these considerations which ordinarily regulate the conduct of human affairs would do. I find that 2nd defendant was negligent in driving the lorry and his negligent driving resulted in the accident.. ... In this case, the 1st plaintiff was less than 6 years of age on the date of the accident. As a general proposition, children are incapable of negligence and therefore equally of contributory negligence. The reason is that children could not be expected to take that care whichthe law expects of adults and ad which in the rase of adults might amount to negligence cannot be set down against the children so as to deny them redress. The law has necessarily to make allowance for their inexperience and infirmity of judgment. .....
'An amount of Rs. 681, as. 4, ps. 6 has been claimed by the plaintiff towards consulting fees for doctors and hospitalisation charges. So far as the consulting fee is concerned, there is no bill or any oilier evidence. PW. 3, Dr. A, K. Menon, says that he was paid consulting fees. At any fate, the consulting fees must be included in Hie bill of the hospitaksation charges and so separate consulting fee is not allowable. PW. 4 from whose institution Ext. P-l series bills had been issued swears that the amount had been paid and for the treatment of the boy this was necessary. Hut in the bill, mixture given lo the mother of the 1st plaintiff also is charged. That comes lo Rs. 2, as. 10. The same has to be deducted. The balance comes lo Rs. 578, as, 10, ps 0. This the plaintiff is entitled lo realise from defendants i and 2. The next claim is Rs. 1,000 being for mental shuck and shortened expectation of life. PW. 4 says that 1st plaintiff is not suffering from any of such infirmities due lo accident. This amount is therefore not allowable. Since the accident look place when the 2nd defendant was driving the lorry of the 1st defendant for his purpose. 1st defendant is vicariously liable. I hold that defendants 1 and 2 are liable lo the extent of Rs. 578, as. 10, ps. 6.'
On appeal by the 1st defendant, District Judge Mr. Balakrislma Menon accepted the assessment of damages but non-suited the plaintiff, holding:
' .. .... Needless to point out that in in action of this nature where the claim is based on the negligence of the driver, the person putling forward that claim must affirmatively prove the negligence. Plaintiffs must also prove that the lorry was being driven in a rash manner and against Traffic Rules, which is the specific case in the plainl. This burden of the plaintiff is all the more, because the first defendant asserts that the occurrence was as a result of an inevitable accident as the first plainliff suddenly ran across the road when the lorry was coming. ,
.... .In a straight road, a speed of 25 to 30 miles for a lorry is not dangerous. It was argued on behalf of the respondent that when the driver saw a group of children by the side, be should have slowed down the vehicle. Even if he had slowed down the vehicle and the boy suddenly jumped on to the road when it reached near him, it will not be possible lo avert an accident. It is true that PW 2 says that the lorry was going at a high speed, but at what approximate speed it was going, he has not been asked. PW 5 has given the speed to be only 25 to 30 miles per hour which in the circumstances of the case cannot be considered lo be a high speed. Whether the vehicle was driven at a dangerous speed or not, will depend upon the circumstances of the caseIn a narrow congested road even a speed of 10 miles per hour will be dangerous. In a straight open road with no obstruction, or traffic, even a speed of 40 miles per hour will not be dangerous. Here the mad is proved to have a width of 30 ft. as seen from the evidence of PW. 5. It was a straight road except for a slight bent, So the driver had good visibility. He could not have been going at a high speed, because within 8 ft. of the impact, be has stopped the lorry as proved by PW 5. That means the lorry was going al a low speed at not even 20 miles per hour. And the brakes of the lorry were exceedingly effective. In such circumstances I am unable to conclude on the evidence available that the plaintiffs have Droved that the 2nd defendant was driving the lorry in it rash or negligent manner. ....
If it were a case where the plaintiff is entitled lo claim damages, I agree with the learned Munsif that the amount should be fixed al Rs. 578-10-6 as has been done by the learned Munsif.
But since the basis of the plaintiffs' claim is not proved, no liability can be fastened either on defendant 1 or defendant 2. So the decree of the lower court has to be set aside. It is accordingly sel aside and the plaintiffs' suit is dismissed. They will pay the costs of the first defendant.'
4. That the 1st plainliff has suffered personal injuries by a knock of the 1st defendant's lorry driven by the 2nd defendant is not in dispute. It is also conceded that if the 2nd defendant is liable for the accident the 1st defendant would equally be liable on the principle that the master is answerable for the ads or defaults of the servant in the course of his employment. The law is well settled that a master is responsible not merely for what lie authorises his servant lo do, but also for the way in which be does it and that if a servant does negligently that which the was authorised In do carefully, or if he docs fraudulently that which he was authorised to do honestly. or if he does mistakenly that which be was authorised to do correctly, his master will answer for that negligence, fraud or mis-lake (Sec Salmnnd on Torts. 13th Edn., p.122). So, the question here is whether the 2nd defendant is liable for the accident.
It is conceded on both sides--1 think rightly--that the defendants' liability must depend on whether the 2nd defendant was guilty of negligence in driving the lorry al the lime of the accident.
5. Winfield defines negligence as 'the breach of a legal duly lo lake care which results in damage, undesired by the defendant, to the plaintiff' It involves three ingredients a legal duty lo take care, breach of that duty, and consequential damage to the plainliff. The accident and the injuries lo the 1st plaintiff are not in dispute. Only the first two ingredients are disputed.
'Duty to take care' is defined by Winfield as a restriction of the defendant's freedom of conduct, obliging him to behave as a reasonably careful man would behave in the likecircumstances. In Donoghue v. Stevenson, 1933 AC 662 at p. 580 Lord Atkin defined it thus:
'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 scums to he persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
The test of neighbourship in this definition is, Winfield pointed out, 'not one of physical proximity but of foresight..... the fact thatthe defendant ought reasonably to have the plaintiff in contemplation when directing his mind to the acts or omissions which are called in question, i.e. the alleged acts of negligence themselves...... This does not mean, ofcourse, that the plaintiff must be a person identifiable by the defendant. What is required is that he should be one of a class within the area of foreseeable injury.'
After many discussions us to whether the test of liability should be whether the accident was the natural or necessary or probable consequence of the defendant's act (this is called the test of probability) or whether the accident was a reasonably foreseeable consequence of his act (this is called the test of foresce-ability), it has now been settled by the Supreme Tribunals in England, the Privy Council and the House of Lords, that the real find effective test is the forcsceabllity of the accident foresecability not of the manner in which the accident happened hut of the occurrence of an accident of the kind. In the Wagon Mound case; Overseas Tankship (UK) v Morts Dock & Engineering Co., 1961 AC 388 at p. 422 the Judicial Committee, speaking through Viscount Simonds observed thus:
'It is a principle of civil liability . .. I that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is loo harsh a rule to demand less is to ignore that civilised order requires the observations of a minimum standard of behaviour ''(Aftcr referring to the test of probability the Judgment continued) But if it would he wrong that a man should be held liable for damage unpredictable by a reasonable man because it was 'direct' or 'natural', equally it would be wrong that he should escape liability, however 'indirect' the damage, if he have saw or could reasonably foresee the intervening events which led to its being done. Thus foicsecability becomes the effective test in reasserting this principle their Lordships concive that they do not depart from, but follow and develop, the law of negligence as laid down by Baron Alder son in Blyth v. Birmingham Waterworks Co.. (1956) 11 Ex 781 at p. 784.'
6. To determine breach of duty, the test, says Winfleld. is laid down in the off-cited dictum of Baron Alderson:
'Negligence ia the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulation the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' ((1856) 11 Ex 781 at p. 784).
'Duty to take care', spoke Lord Macmillan in Bourhill v. Young, 1943 AC 92 at p. 104. 'is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence Injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed'. The noble Lord reiterated the same in Glasgow Corporation v. Muir, 1943 AC 448 at p. 457 and added: 'The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is inde pendent of the idiosyncrasies of the particular person whose conduct is in question. Some persons arc by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen.' To decide culpability we have to determine what a reasonable man would have foreseen and thus form an idea of how he would have behaved in the circumstances Lord Dunedin said in Kardon v. Harcourt-Rivington. (1932) 146 LT 391 and Lord du Parceq repeated in London Passenger Transport Hoard v Upson, 1949 A(' 11)5 at p 176 'If the possibility of danger emerging is reasonably apparent, then to take no pre cautions is negligence: but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions' As I have already said what is material here is foroseeability of danger and not of the manner in which the danger materialised in fact.
7. A reasonable man would so regulate his conduct as to avoid producing any undesir able consequences which he foresees as probable . That is the normal standard og careful conduct If the conduct in question falls shot of that standard it is negligent Here, the question is not whether the dcfendant did actually foresee the consequences that happended as probable The question is only whether he as a reasonable man. ought to have foreseen them If the circumstances of the act are such that a reasonable man would have foreseen the probability of the accident, then the defendant, whofailed to do likewise or who envisaged it imd rejected it as too remote a chance, has to he regarded as having been negligent. It is unnecessary in law to prove that he actually foresaw the event or the consequences. If is enough If the circumstances are such that he. us a reasonable man, ought to have foreseen them. When the circumstances of the act indicate that certain consequences might ensue, the person must be held to have foreseen the consequences or at least ought to have foreseen them
8. In Hughes v. Lord Advocate, 1963 AC 837 the facts were thus: On November 8, 1958, some Post Office employees opened a manhole n Russel Road, Edinburgh, to do some repairs to a telephone cable under the roadway They erected a canvas tent over the open manhole and at about 3-30 p.m. put four red warning lamps in position outside the tent. The lamps were of the normal pattern and lit by paraffin Soon after 5 p.m., when it was dark in Edin burgh, the workmen left the site for their tea break, leaving the open manhole unattended, and were absent for about a quarter of an hour. The appellant, a boy of 8 years, with his companion another boy of 10 vears, came along the road, picked up one of the red lamps, swung it at the end of a rope and went into the manhole. After they emerged from the man hole, the lamp was either knocked or dropped into the manhole and a violent explosion took place causing severe burns to the appellant. The House of Lords were unanimous in holding that it was negligence on the part of the post office employees to have left unattended the open manhole and the paraffin lamps in a place where children would be tempted to explore and play with. All the noble Lords concurred to observe it to be reasonably foresee able that the tent, the open cavernous manhole and the red paraffin lamps were allurements to inquisitive or mischievous boys and that by mishandling the lamps boys were likely to sustain burns Though the plea of contributory negligence was taken, it was ultimately accepted that having regard to the children's tender years they were not to be blamed, for meddling with the allurements on the road side having no watchman to guard them and no fence to keep children away
The above decision shows that, if the possibility of danger is reasonably apparent, then to take no precautions would he negligence and that in judging the duty of care and its breach the status of the person injured has also to be taken into account
9. In 1943 AC 92 at pp. 116 and 117 Lord Porter observed
'In the case of a civil action there is no such thing as negligence in the abstract There must be neglect of the use of care towards n person towards whom the defendant owes the duty of observing care. .. The duty is not to the world at large It must be tested by asking with reference to each several complainant: Was a duty owed to Mm or her?'
The position is explained in Salmond on Torts thus:
'The ideas of negligence and duty are strictly correlative' said Bowen L. J., 'and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound to exercise towards some body This duty of carefulness is not universal; It dues not extend to all occasions, and alt persons, and all modes of activity. So Lord Esher M. R. once uttered the characteristic remark that 'If a man is driving on Salisbury Plain, and no other person is near him, he is at liberty to drive as fast and as recklessly as he pleases'. So a man may be under a duty of rare towards one person, and yet in the same matter and on the same occasion under no duty of care towards another' (13th Edn., pages 423 and 424).
10. Of course every workman constantly. and justifiably, takes risks relying on others to do their duty and trusting that they have done it But that is far from saying that everyone is entitled to assume, in all circumstances, that other persons will be careful. In the case of I an adult person, an amount of care on his part attributable to a reasonable man in the circumstances may be expected and correspondingly the duty of care owed to him may be reduced In the case of a child, having regard to its age, its mental development and other attendant circumstances, not much of care can be expected and accordingly the duty of care owed to it must then be of a higher standard. As Lord du Pareq said in Grant v. Sun Shipping Co. Ltd., 1048 AC 540 at p. 507 and iterated in 1040 AC 155 at p. 170 'a prudent man will guard against (he possible negligence of others when experience sbows such negligence to he common' The latter was a case of collusion of a motor-bus with a pedestrian who emerged suddenly from cover of a stationary taxi-cab on a side of the road and was crossing road when the light signal was not in her favour. The House of Lords were unanimous to hold 'a driver fails to exercise due care if he proceeds on the assumption that pedestrians will refrain from crossing the road until the lights change and drives his vehicle In such a way that he cannot avoid an accident if a pedestrian emerges suddenly from behind the obstruction' It has been settled time out of mind that men must use care in driving vehicles on highways. A special care is called for where pedestrians are likely to cross the road and a much greater care if the pedestrians assembled on the side of the road for crossing arc schoolboys of young age. The evidence is clear that the 2nd defendant, when he was about 75 to 100 yards away from the spot could well see the boys about to cross the road. The evidence further shows that as soon as the bus passed when there was a space of 75 to 100 yards in front of the lorry, the boys began to cross the road. There were 20 to 25 boys of tender age to cross the road The boy In question was only less than six years and the road was 30 ft. wide. The accident that happened, in the circumstances, must have been foresee:! or ought to have been foreseen by the 2nd del en dant.
As observed by Lord du Parcq in 1949 AC 166 at p. 178 'no speed is reasonable which is not adjusted to the circumstances of the moment, including the fact that the driver is approaching a pedestrian crossing and may have to pull up quickly and within a very short distance'. Having seen the school-boys about to cross the road, it was the 2nd defendant's duty to have proceeded at such a speed as lo be able, if necessary, to stop before he reached the crossing place. Proof here is that the lorry could be stopped only after it went 8 feet beyond the place of accident. There is no merit in saying that the boys were at faull in crossing the road after seeing the lorry coming down at a distance of 75 lo 100 yards. It is common experience that boys, in crossing a road, do not often behave with 'reasonable care'. ' A driver is not, of course, bound to anticipate folly in all its forms', observed Lord Uthwatt in Upson's case, 1949 AC 155, at p. 178, but he is not entitled lo put out of consideration the teachings of experience as to the form those follies commonly take'. Had the 2nd defendant been driving at such a pace as to enable him lo stop short of the place at which the boys stood to cross the road or of the line they were crossing the road both mean the same thing the accident would not have happened. He had obviously gone al a much higher speed. A lorry proceeding at 30 in. p. h. could well be stopped within 15 yards. The evidence, accepted by the Courts below, is that when the assemblage of boys began to cross the road, the lorry was at a distance of 7ft to 100 yards.
In the circumstances, the collision with the 1st plaintiff was obviously the result of negligence on the part of the 2nd defendant vis-avis the 1st plaintiff and he is answerable in damages lo the injuries caused by that accident. The decree of the District Judge has therefore to be and is reversed
11. As regards the measure of damages: Damages for personal injury arc assessed under two distinct heads In British Transport Commission v. Gourley, 1956 AC 185, at p. 21.16 Lord Goddard has explained them thus:
''First, there is what is referred lo as special damage which has lo be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down lo the date of trial, and is generally capable of substantially exact calculation Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the tike and, If the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future.'
Lord Tucker observed in The Hebridean Coasts: The Citrine v. Herbrideen Coast. 1961 AC 845 al p. 580:
'...... any specific damage which couldbe assessed in pounds, shillings and pence. seems to be generally referred to as special damage in contradistinction to general damages which cannot be accurately quantified but fallto be computed on what is often referred to as 'a jury basis' or a 'judicial guess'.'
12. The plaintiff has claimed two items of special damage medical expenses of the Nursing Home, Rs. 581-4-6, as per Ext. P-l series of bills and consultation fees. Rs. 100. paid to doctors outside the Nursing Home- and general damages in the sum of Rs. 1,000.
13. Damages under the head of medical expenses may, the learned editors of Winfleld on Tort, 7th edition, observe, cover both past and prospective expenses and Include not only the cost of medical treatment and attendance but also such mailers as increased living expenses, if, e.g., the plaintiff has to live in a special institution because of his injuries, tram port costs lo and from hospital and charges of nursing attendance.
In Schneider v. Eisovitch, 1960-2 QB 430 Mrs. Schneider was injured and her husband killed in a motor accident in France. When Taylor heard that his brother had been killed and his sister-in-law was lying in a French hospital apparently seriously injured, he and Mrs. Taylnr at once flew lo her assistance. Mrs. Schneider's claim to recover their out-of-pocket expenses in order to reimburse them was allowed by Paul], J. as their services became reasonably necessary as a consequence of the accident and the expenses were reasonable.
In the present case, one of the bills of the Nursing Home included Rs. 2 odd as cost of mixture given to the mother of the 1st plaintiff who was nursing him Nobody will say that the mother's services were unnecessary lo the boy al the Nursing Home or that the expense of Rs. 2 odd for mixture given to her when she felt uneasy was not reasonable. Counsel for the respondents staled that that item was not impugned before the Minisif. It is rather surprising why the Munsif struck it down and awarded only the remainder of the bills as special damages to the plaintiff
14. The second ilem of special damage has been rightly disallowed by the Munsif as been not proved. Though PW 3, Dr. A. K Menon, has sworn that he was called to the Nursing Home for consultation and been paid fee he did not remember the amount paid, nor was it put lo him. Even the 2nd plaintiff did not testify to the amount of fee paid.
15. The claim for general damages has been disallowed by the Munsif under an obvious misconception of law. General damages represent the pecuniary reparation or sola tium to the plaintiff for the injuries sustained by him. As has been said already, general, damage is to be presumed by the Court and therefore needs no specific pleading for grant of relief. In practice, a mere general allegalion thai the plaintiff has suffered damage or injury or a mere statement of facts about the accident with a prayer for award of damages is sufficient lo entitle the plaintiff to a decree for general damages. (See the Law of Damages and Compensation by Kameswara Rao, Chapter XXXIII, para 3 and Law of Pleadingsby Mogha. 10th Kdn, pages 24-25). Even in valuing the claim, it is open to the plaintiff to put an estimate of the general damages paying court-fee thereon and offering to pay before decrec is passed additional court-fee on the fixation of damages due to Mm. (See Ragavaji Sait v. Annamalai Mudali, (1907) 17 Mad LJ 625). A plaintiff, claiming damages but failing to prove any special damage, may be entitled to general damages. In 1961 AC 545 where the plaintiffs' ship had sustained damage in a collision with the defendant's vessel and the plaintiffs claimed 1625 as special damages for loss of use of the ship for the period of detention for repairs and general damages in unspecified sum but failed to prove special damage, the House of Lords held them entitled to general damages on the basis of interest on the value of the ship and depreciation for the period of detention. The relief of general damages must necessarily be more imperative in a case of collision causing personal injurids with concomitant pain and suffering -- physical and/or mental. The Munsif has disallowtd general damages on the ground that the is plaintiff is not suffering from any infirmity after the medical treatment received by him. The reason is fallacious. What about the pain and suffering undergone by the 1st plaintiff? They are material items for which the Isl plaintiff is entitled to pecuniary compensation by way of general damages. The Munsif's disallowance of any general damages in the circumstances of this case was most unwarranted; but it has been acquiesced by the plaintiffs, who did not appeal against it in the first appellate Court. Even in this second appeal, the claim is confined by them to tlte sum of Rs. 578-66 p. that was awarded by the Munsif.
16. In the circumstances, all thatcan be done here to reverse the decreeof District Judge and restore theMunsif's award. The Munsif has awarded proportionate costs to both the parties.In the circumstances of this suit, the plaintiffshave fo be given their full costs throughout(inclusive of the costs incurred in the trialCourt on the claim for general damages).Judgment accordingly.