Mtambo & Anor. v Whitehead (Civil Cause 319 of 1992) [1993] MWHCCiv 36 (19 March 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 319 OF 1992 --------· ··--··-----""-·--.-.----.--., ---------BETWEEN: ., " , .. " , , , .•.. 1S'I PLAINTIFF -· and -R ViTANBO •. o •• " ,, , •• " • , " ••. , • " " ,. " • , ••. , •• 2ND PLAit~?IFF -a.nd -G G Y'Jf-JITEf-JEAIJo o n o c ,. n n .. o o • •.•on • n o • o" • ," ......... DEFENDANT CORAM: UNYOLO, J. _ ~siska, of Counsel for the Plaintiffs Mvula. of Counsel, for the Defendant Mthukane, Official Interpreter · l:ao:ce, Court Reporter J U D G M E N T Th~ claim in this action arises from a road accident which occur~ed along Glyn Jones Road, near Mount Soche Hotel, in the City of Blantyre, during the evening of 13th i':1arch 1991. The two pl2intiffs. whc are a man and his wife, were at th~ material time travelling o~ a motor cycle frora Bisher t·1acke;.,zie Hall near Ryalls Hotel to their house in LimJ:e after att~nding & Service of Worship at th8 said hall. Wheri they were pessing by Wount $ache Hotel 'they were involved in an accident. They colli~ed with the defendant's car, riJht . at the ·i.:u;:n to . ti1e hotel. Ti1e defenaant was 2-t the timt? going to the hotel for dinner. 7aking first things first, I will deal first with the plaintiffs' version of the accident. Both plaintiffs said that t~ey were following three cars as they approached Mount Sache Hotel. Incidentally, the first plaintiff was driving the motor cycle and the second plaintiff sat behind him as a pillion ?assenger. It was the evidence of both the plaintiffs further that at the same time they saw a car from the opposite direction stopped at the turn to the hotel with the right indicator on, showing that the driver intende~ to I tu.: .. -n to the hotel,. This was the c1efendant .. The first ~ plaint!ff saia that ~oon after the ca~ which wes ~mmeCiately 1G;..., in fr-or.t of him crossed with, or shall I say,. weat 9ast the Co l. 'l31y Uf:1-r ~ -2 -defendant's car, suddenly the defencant shot out to cross the road, he~ding for the entrance to the hotel. He said it was at that moment when he collided with the car, hitting the front nearside wing as the defendant was attempting to c1-oss o In cross-examination, the fi~st plaintiff admitted that he waE only a learner 6river at the material time, He, howeve:c, denied th~ acciu.ent can be contri:::)uted to j_ncompetenc2 on his part,. Be s2,id that he was driving carefully and that ~ndeeC h9 has been driving motor cycles since 1983 o Further, the first plaintiff denied he was driv:i.ng very fast at the material time" He said that he could not have driven thus, si~ce there were several cars in front goini;:_; i:1 the same It was also put to the first plaintiff in cross 8x~mination that the defendant die. stop soon aftBr he hac~ start2c:. cross:.i.ng. havin~ seen the motor cycle and it was sw;;geste(]. that ther8 was ample space for th8 first ?laintiff to t~)ass j_n f;:ont of the car. The first plaint~ __ ff C~eni·ec:i this. He saiC that the car had completely ~lockeC the lane in :1is p2.th and that it was movj_ng at the timS? of the collis.:ton ., T~e ~0fendant admitted most of the facts. He admitted that when ~e got to the entrance to the hotel, he stopped, as the~2 were several cars coming from the opposite Cirection which had the right of way. He admitted further th.:-,t 'i:h9 collision occur~e~ in the plaintiff's lane 2.s he was t~ying to cross the same he2ding for the entrance to the hotel. Be ac1mi tted that the plaintiffs were comin~:-behinc.1 the said cars, !-Jis case was that he only saw the motc:r cycle, a light actually, when he had already started tu:::-nin~;" He said the motor cycle was far a.way at th~ time and he reckoned he coule turn into the other lane and cross ov~r safely. Then he saw the motor cycle coming close, w~en ha sto?ped, leavins ample S?ace for the motor cycle to pass in fron·i:. It was the defendant's case that it w2s due to spe~.:,;d anc~. 'acom?etence on the part of the first plaj_nti.ff that tha accident occurred. I have conside:;.-ed the evidence with great care. On the issue of speed, I am, with res?ect, inclined to prefer the evidence of the first plaintiff tc that of th8 defendant, It is to be noted that the first plaint~ff came out uashaken in his ev::i.denc0 that he. was d:-ivinq at a low speec ond ~1e was on this point supportec."'., not only t:y the second ~laintiff, but by PW3 as well. Observably, both the secon~ pla~ntiff ana PWJ also emerged firm in their evJ. C\er:.ce, Inc.eed ,, PW3 is an independent witness with no personal interest in the matter. With respect, I have not be0n able to find any evidence in support of the defendant's contention that the first plaintiff drove the motor cyle at great speed. InGeeE. considering the total evi~ence, I -3 -don't think the defendant was was so placed that he would be able to tell th,~ mo.-.:or cycle was coming very fast., It aoDea~s from the defendant's own evidence that it was only as he wa3 turning when he saw the single light of the motor cycl~ 2.nc. then there was the accident., Be must also have been looking where ~e was going and it must b9 borne in mind th2.t this was in th'::) even.:i.ng ,. In short, I fine. th2t thr:. first ~laintiff was net driving fast. Perhaps I should mention that it was further alleged, in the (.efence, that the first ~:)lain tiff also drove the motor cycle :i.n "a zig--zag way". However, this allegation was not put to any of the plaintiffs or the other witness, nor w2s it raised by the defen~ant in nis evidence. Consa~uently: this allegation simply falls through. :;::;.efs:,:z-in,:_::1 to the issu~ of cor.ir-etence or incom?-=t':!nce of ths first plaintiff as 2 ariver, I am GatisfieC, on the ave.:.:.. J..at<'-~ svidenc~, that the first plaintiff w2.s at all mats~ial times, and is, a competent and capable driver. He eme--::-g,:::d unshakea in his evidence that he has l::ieen a.rivinc; motor cycles since 1933 and that he has driven in the City of Blantyre and on long st=etches for a long time. aefer~ing to the law, it is w~ll settled that a c~~ver of a motor vehicle owes a duty of care to other road users. He must use reasonable care which an or~inary skilful dri7er wo~ld have exercised in all circumstances of a given case. And a ~easonable and skilful driver has been define~ as one who avoids excess~ve speed, keeps a good lookou~ and obs~rv~s traffic signs and signals. See Christina Banda -v Adrnarc and Another, Civil Cause No~ 273 of 1987 ( u.0-:ceported) . In the present case: as we have s~en, the :9laintiffs were driving through ?long the main road, whilst the o.efendant w2.s turning f:r-om t:1e said main roao into 2: siC:.e roaa. Cle~rly: the plaintiffs had the right of way, not the e.efenr~:a.nt. It was sw.;:;~;ested that the plaintiffs' rit;ht of way had not accruad at the time the defenGant be~an crossing, in that the plaintiffs were far away then. ~his contention must, however, fail, for there was overwhelming eviC::ence that the plaintiffs were at all material times driving close to the car ~mraediately in front of them. Quite }.:-ight:1.y ti1s defendant gave way to the thr-e•e c2.rs 2nd l1e should also have given the plaintiffs the right of way. And it is common :~now ledge that a driver intendL:1g to turn to the r:i.~~1t .i.nto a side road must have c, proper-lookout to enslE'0 tha.t it is s2.f2 to C.::o so, ::>ear ins :..n mind t:1at raoto~i~ta from the opposite direction would have the right of wc.y, 1'..s I have earlier indicated, the d8fencl.,rnt in the present ca.:,e in.:i. ti ally only saw the tl1ree cars and j_ t was only when he ha~ already started turning that he saw the motor cycle. It is as;ain comr.ion knowledge that ,ve have motor cycles on the road. In6e2d, there are plenty of them on our roads these days. An ordinary, skilful driver ought, thereforE::, to anticipate their presence on the ro2,c~. In my judgment, tl1e defendant should .:1ot have :?roce,3dec1 to turn imrned~ately the third caz went past. He shoulG have checked the ,:·oacl to see that the;:-e was no other motorist oc:: roac~ t1.ser,, A~other point raisee by the defen~ant, as I have shown, w2 .. s t:1a.t when :.-12 saw the :.1otor cycle :1e quickly stopp-=cd, leavi.ng, so hE: saic"i, enough roon: of ai)out six to seven feet for the plantiffs to pass and that he was stat:i.ona:i'."y at an angle of 45 °, f2.cj_ng the hotel, ,vhen the motor cycle; came anc hj_ t the car. I have saic. tha.t t~1:i.s contsntion was vigorously denied by the plaintiffs, who were suppoI·tec' by the othe:;:-witness, PH3, According to these th:;:2e, -c.!:1e defenc'.z.nt' s ca:r-was riot station2.ry at the time of the collision and as I have in~icatad, according to the first ?laintiff, the defendant's c2r completely ~locked him, gi v::.ng bj_m no sya.ce to pass as alleged. But even assuming that th2 defendant stopped in the manner he says he stopped, tl12t. in iilY judgii1ent, could not advance his case. Such a sudden step, in all the circumstances of this ca.se, would influence or cause the first plaintiff to act on the spur of the moment. This is what is sometimes called the agony of collisioil and if the first plaintiff took an unwise cou~se, hs wc~ld not ~e fault~~ er liable. It was next argue6 that the first plaintiff canilot ~e he2.:.::·(~ to complain :Ln this matter:· since ~'le comm:!. tte0. z.n of:i:enc,-.! by carrying a pillion passenger, the secon6 plaintiff, when he was only a learner driver. Learned Counsel lurther argued th2t the second plaintiff too cannot coraplain, since she willingly acc~pted to be carried as such pillio~ passen£er knowing fully the first plaintiff was only a le2rner driver. With respec~, I am unable to accept this ar~;ument, s.i.nce, as I have already founcl, there is on the evidenc2 nothing w~ong with the first plaintiff's manner of dr::.v.:\.n~; Fina!ly, it was suggested that the defendant could not h2ve ~e2n negligent, 6onsidering that although the accident w~s re~::>orted to the Police, he has to this day not been charged with any traffic offence or ?rosecuted. With respect, I wou~d hesitate to jump to such a conclusion. The Police diC not testify in this cass, in~aee, it is also a fair o~servation to make that civil cases are diffe~ent from criminal cases and the stan6ard of proof applicable in the forme~ catego~y of cases is different from that applicable 5.n the 12.tter. Fut briefly, I fiad that the Jefendant owed a ~uty of ca::-,,:. to the ;?J.c1.i.ntiffs ~.nd that i1e comrnj_tted a breach of that duty and was, therefore, nesligent. c:; .., Lea~ned Counsel fer the defen~ant aearessed the Court at length arguing tha.t the f5.rst plaintiff was guilty of contri~utory negligenc~. It is, however, to ~e noted that contributo~y negligence was not ple2ded in the defenGant's c'.efence, 2.:1c.":: as ~-ms rightly argued ?Jy learned Counsel fo: the ;;,1aint:;_f:Zs.. if the defendant intend.e5 to set up the defe;:1r.;e of contr5-butory neglj_gencs-.. then :1e was r'.cr-:·ui:cec:7.,. und~r the Rules to plead the sam9 specific2lly an6 set out the ~articulars the~eof. See 0.18/8/17 and 0.18/12/8 of the Rule~ of the Suprer.ie Court" This was not done :i.n b1e present case and there is, can be ~aised only during thsrefo1.:-s. no the adc1rssses .. way the issue he~e I now turn to ti1-8 c:uestion of damages" It is not 0:Lsput.2d at th:Ls point that as a. :::-esul t of the collision both ?la~ntiffs fell cff the motor cycle an~ sustaine~ physic2l j_njuries. 7he motor cycle also get dama£ed. ihe plaiiltiffs claim ~oth sps=ial and general earaages. I will deal first wit~ the claira for special damages. First, the first plaintiff, 2s per the statement cf claim, claim/j b1e sum of IU, 597. 94 in :;.-espect of repa.irs carried out to th-:: r:,otor cycle,, In his ev:..dence, the first plantiff produced Exhib~t P3, an estimate given by Stansfiel~ r~oto~s, c~alers of ths mote~ cycle h8rcin, ~uoting a figure of Kl,5~i7. 91'1 as t;.1eir estimate to repair thD r:ictor cycls. 2-Je said th2t the motor cycle ~as actually repaired by the sai~ dsa1ers anC:. that the said sur,1 of Kl. 5 9 7. 9ft was pc.id as fol:.ows; 2.) Kl,187092 0y the insurers; anc~. b) IUll0,02 ";;)y himself. It w2s the p~aintiff's evisance that the insurers declined to pay th2 I(4l0. 02, because this a.mount zepresents certain parts c~ the motor cycle.' viz, :Oattery, fuse :,)o~ anc: seat cover, which missed after the accident, stolen 2ctually. The fLcst '.?l2intiff die: not,, however prcc.uce any document to show 0':bat e:U:her the Kl,187.92 or the r<,UG.,02 was indeed paid" Us saie. tha.t the relevant c:ocuments in tois res~:-ect are ~eing kept by his smploye~s. Observably, I don't seem to qu.::.t?. unc5.erstand why the first p].aintiff o.ic; net ::.~ring thess 6ccuments to Cm . .u:t to support his evic'.ence c:1 this point It is to b~ noted, hc0ever, that it was not seriou3ly disputed the motor cycle was indeed repaired, 2nd. to ray m~nd, the sum claims6 doesn't ap?ear to~~ inordinate or inflat~0 ~n all the circumstances. How~ver, I 60 not see any conviacing ground upon which the defandant shoul~ 21s0 ~2 held ~esponsible for the ite~s which we~e stolen by someone els-2 lz.tsr on after th2 accident. Ee j_s, hov.1ever, entitl·ed to th8 Kl,167,92 on the autho:.:-i.ty of Sharma -v National Bank of Malawi, Civil Cause No. 87 of 1987 ( Uiu-e:::iortec;) , j_nspi te of t~1e fact that it w2.s the insurers, not h~m, w~o actually paid for thP r=pairs, Accor~ingly, I awar~ the ?la:..ntiff the sum of Kl,187.~2 on this as?ect. I:J~1;;:t _.. th~~ plain.t~ .. ffs clairn s9ecial c~ama(Jes in tl1e sum of :::GS!;,. 4 7, bci_n~, cost of ii1e<Eca.1 treatmen-:: received as a result cf the injuries sustaine0 in th2 accident. ~he first p1a~_ntj .. ff te11dc~;:--e6 j_n evic5~enc'2 E;~l1i;:,i t P2; viz r .:..11vo.:1.c2s i-2:'_sed 292.inst the f il-st pla:i.ntiff ;_y ti1e Queen Eliza0eth Central HoG?ital, totalling the said sum 0£ K854.47. It was the first ?laintiff's evidence that this sum was paid to the said hospi.tal by his employ~rs un~er 2 medical scheme ~un by tha O~g2nisation. Ee said that the medical scheme is sntircl7 run by the Organisation anC that members of staff, inclu~ing the first µlaint~ff, 6on't contribute 2~ything tow&r~s the same. L22rnad Counsel for the plaintiffs urged the Court to deal with t~2 matter on this aspect en the same footi~g as monies ~a~d out by insursrs on be~alf of the insurad as in tha c2s~ of the money the ~nsurs~s ?aid for the repairLJ to the met~~ cycle in the ?resent case. With respect, I think that th~rs !s a material difference ~etwe9n ths two s:~·tua:tior.r.s,, Ir). -'cJ:1e ~11.st1~cers ~ caaSe .· ·the. insur~c-L c1oes ;~c..y a prera~urn. In th8 ~on-contributo~y medical schems t~e eraployac do~s not suffsr any fin2ncial cost. On these f ac·i:s, I can sS!e no ccnv:i.ncii1:;_i re2.scn why a p<::c:-son in thR latte~ cate0o~y shoulC be 2llowea to claim, as that. to my mind. woulC tantamount to ha~vesting where one eiC not sow. It would. I thin;-., ~.)e c.:i_fferent where the emp1oyee contr~~ute~ towards the meeical scheme. All in all, I ~is2llcw the plaintiffs' clai@ on this hea~. I now turn to gener2l damaqes. I will ,._-:.eal first w~ th the fi,.:-st pl2j_ntj_ff. The evidence shows that he sust2.in2c1 szr:Lous j_1·,ju.::y, He actua1J.y p2sssec-:. out on the spot 2.nd. was semi-conscic-us on first attendance at the hospita1. Ths med:~cal repo:ct .-:Sxh: !:ij_ t Pl. ::-enderec~, shows that the first plaintiff ~ustainc~ a fr2cture o~ the tibia (in three fragments) and of the fibula; lsft leg. He was hos?~t2li3~d for one month: during which ?er~cC the leg was O?ened and a metal ?late fitted inside and 2 cast was also applie~. ~he me6ical report goes on to show that the first plaintiff suffered acute pain fo~ sometime and that he would contiru2 to suffer some paj_n on the leg in future. He:: J.s a. J.so J.i'.cely tc suffer "osteo-athr:L t:i.s", i" e. 2 dec;enerati V8 cc:idit::..on of the leg, Pe:-manent disa::iility of the les' ~-,as assess3~ at ~0%" The first plaintiff told the Court that he ca.:.1not walk norm2.lly _ as he limps and tl1is cond.i tion ~1as af:i:ecteo h~.s :;ier:i:ormance 2_t work" I-le vJas at all mat2riaJ. t:i.mes. 2.nC. still is., & ~.e:_'.)ot supervisor. ;1e said that in t:1is position he h2s to walk u:.) a:.:.c-; cown and aJso climb stacks of proc'uceo It was hj_s evi6.ence furth~r tha_t he misse{t 2: p::.:-omotion thr: time he was in hosp:i. ·::al 2.nC:: he reckons that his poor condition just described is li~ely to affect h~s chances of advancecent in his work. i?2u.sii1g here, th2r2 c2n b0 no eou::t tl12,t the f:;.rst plaintiff Guf~e~~d considerable pain and that he will continue to suffer some ?ain on anG off in future. The~e is also no doubt he will not be able to do certain things, such as running or walking long distance3 as he used to do ~~fore t:.1e 2.ccj_aent., In short, I ar.1 sat1sfi.zo. that the first plaintiff i~ entitled to 6~Qages for pain and sufferin~ and fo:c lose of amenities I am. however not so sure 2.::-.:iout the cl?:i_r.1 fo:c p;:-omoticna.l ?respects; :i.n other wo:t0.s, loss of ear~in~z, I find the evidence to be conjectuial in all the c:Lrcums·cances, ~n Oris Bello -v-Willie Phiri, Civil Cause No. 285/86 {unrnpo~te~), the plai~tiff sustained a fracture of tha riqb·:: fL)Ul2.. r:e .stc:.yed j_n i1ospi. ta::. for th1:ec r.1ontbs. No surg~cal o~eration w~s performed-The leg was cast in plaster of ?aris for ten weeks. He lost normal walking 0cstu:e 2nd th~ degree of permanent incapacity was assessed at 10%. I awarded the plaintiff KS,000 for pain ana suffs~ing and shock. In Rabson Thonje -v-Capital Hotel Ltd and Another .. Civil Cause No~ 365/8 7 ( unr8ported; , ti'l.e ,?l2int::'.ff sustc:i.in3C::. a :,::;__·actur-e c-•f th2 ri9!1t leg a.no. a~)ras:i.ons of the r:i_ght hanc~ .. He waE operated on sever2l times and a plate was fitted and 11,::: .stay,-::0. ::_n_ hospital on c:i.nc1 cff for cnG ye2.r .. T~12 J.e,;-; in qus=tion was =endered shorter than the oth~r and as a result, he could not walk normally. I awarded the plaintiff K6 000 fo~ general damages. P~.:1a1ly, in Sagawa -v-City of Blantyre, Civil Cause No. 147 of 1985, Ktegha, J. awa~ded th~ plaintiff KG. COG. ae obs::::;::-v _,,c'.: :: I w~_J_J. now tu:n to the cuestion of general C:amages < ~~e mc6icDl evidence r2vc2ls that the pl2intiff has a p0::-mane11t C.is2.bili ty, in th2,t on~ leg is short ~:>y lcr;;. Fs i~27 have pt'o:::ilerns in futv.:·e, I woulC:. en th:i.s ev:'..6snce award ;1ener2l damac_;•es of K6. GOO." ne·;.rertinc;_: to the present case, I have aJ.rec:tc"'.y shown that that first plcintiff suffered quite seve~e injury. Cons:', :·:2:c:_n0 th2 facts and C::.rawing guic:ance fror,1 the cases just c:'. ·.:ec1. ~ anc.":. consj_dering furt~1~:-..-ti12 i:1cic;enc2 of t!1e Gevalu~tion of the G2lawi Kwacha I award the first pla~ntiff 0eneral 0amages for pain and sufferin~ and loss of 2.menj_t:i_•.ss i_n the s1.:rn of r-<9, 080" Finai1y.. I t~n1 tc the second pld.nt:i.ff" She too suffere6 injury. but of very slight n2tur~ ccm0are~ to that first plaintiff, She: sustain:2(, ~:.:-uises cf anc:. 2. ya:::tiaJ. C::.is1ocation of ths coccy:~, tr iansular ?.)onG of the lower tip of tl1-2 She was aCmitted in hoapital only for two days. Her medical ~eport, 2xhi~it P4. states that the lonc-tsr~ effect susta:~neu ti,s lm·-1e,: tile '. . .,y the limbs small of th:Ls fact is that she woulc'. suffer pain "c~u•::-in.•; g.iving :::>irth". 'The :-cport ::o~s on to show tl1at 2.nothsr long-tc.z-m effect is a~thritis. It also shows that the second nlaint~ff did suffer pain as a result of th2 injuries !:1er.e~_1,. Permanent incapac.:i. ty as a rss1.1.l t of ti1E: leg injuries is 2ssesse6 at 5%. f-12tvinq cons.:i.de1:ec:. the :2'2.cts fully do~ng the bsst I can, I awar~ the secon~ damages fo.: pain an~ suffe~i~g in t~s sum c1:.1.c'. carefully and plaintiff gene~al of Kl,OCC. 'Io ,:-~ca~)7.tulat2, I have, awa':-Gf':!C. the first pj_aj_ntiff t~"19 !JlJ.rn vf I(l .. 187~92 for Sf:lE:CJ.2.l c1a.:t.2gGs a.n0. kC~rOCO for general ~amages a total cf ~10 187.92. I accordingly enter jv.egrn~-rnt for the first ;?laint.:'.ff for this sum, Fj_n2lly. .l s~tc~ judg~ent for the aecond pl~intiff in th~ sura of Kl_OOO ?be defenG2ct is to p2y the costs of the pro-:::8eCtJ.n.gs •J P20NOUNCED in open Court this :9th day of March 1993, at 3J.an-tv::-8 ' -