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JUDGMENT
JUDGMENT OF FRANCOIS J.A.
Francois J.A. delivered the judgment of the court. The incidents which gave rise to this appeal occurred on 23 November 1965. The plaintiff on that date, sustained serious injuries when the defendant's vehicle on which she was travelling, careered off course and plunged into a ditch.
The plaintiff claimed damages for negligence, particulars of which she listed and then concluded with the usual reliance on the maxim of res ipsa loquitur.
In denying negligence the defendant pleaded a latent defect, which he formulated in the three paragraphs recapitulated hereunder:
"(2) The defendant denies paragraph (2) of the statement of claim and says the lorry went off the road as a result of a sudden break of the steering arm which rendered the steering beyond control.
(3) As to paragraph (3) of the statement of claim the defendant says the driver did everything possible to stop, steer and control the vehicle to avert the accident but failed because of the sudden break of the steering arm of the vehicle.
(4) The defendant says that the vehicle was properly maintained and had no defective steering until the sudden break of the steering arm just before the lorry went off the road.”
For these reasons the defendant urged the maxim res ipsa loquitur could not apply. The whole issue for determination in this appeal therefore is whether the defendant is right in this contention.
Where a plea of latent mechanical defect is urged as exculpatory of negligence, a burden is cast on the defendant to show that the defect was not discoverable by the exercise of reasonable care and consequently the accident occurred without any contributory fault.
There is a host of authority for the proposition that a latent defect can only avail as a defence if this is established see Ritchie v. Western Scottish Motor Traction Co., Ltd. 1935 S.L.T. 13; Basted v. Cozens Sutcliffe [p.283] Ltd. [1954] 2 All E.R 735n; Roe v. Minister of Health [1954] 2 Q.B. 66, C.A.; Barkway v. South Wales Transport Co., Ltd, [1950] 1 All E.R. 392, H.L.; Edmund Davies L.J. in Henderson v. Henry E. Jenkins & Sons [1969] 1 All E.R. 401 at p. 411, C.A. put the principle succinctly thus: "if a defendant seeks to rely ... on a latent defect as the sole cause of the accident, it is incumbent on him to establish this.” At the trial in this case the plaintiff gave evidence of the accident, her injuries and her medical and other losses. The defendant declined to give evidence. The le