Chamera v Chibisa & Another (Civil Cause 84 of 1985) [1987] MWHC 4 (16 November 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 84 OF 1985 BETWEEN: ALA, CHAMERA oo oc cs ve sc es ee essa PLAINTIFE - AND - Ri CHIBISA -... cd se oo ce os es ws 5 vw ss es LT DEFENDANT - AND - HALLS GARAGE LIMITED .........0c.-¢.. 2NN DEFENDANT Coram: MBALAME, J. Nakanga of Counsel for the Plaintiff Msiska of Counsel for the Defendant Mrs. Gausi, Court Reporter Namvenya, Official Interpreter en ee me ee ee a ee ee ee JUDGMENT By writ specially endorsed the plaintiff in this case, A. A. Chamera, is claiming from tha defendants a sum of K1,500 and general damages arising out of a road accident which occured on the Chileka/Blantyre road on 12th Pebruary, 1982. It is the case for the plaintiff that on the material day he was riding a motorcycle registration mark BE 6564 towards Chileka Airport. When he approached the Blantyre Water Board pumping station he was hit by a motor vehicle, BE 9037, driven by the first defendant, a servant and or agent of the 2nd defendant. It is alleged that the first defendant was negligent in that he was driving too fast, failed to keep any proper look-out, drove his vehicle across the plaintiff's path and that he overtook or attempted to overtake when it was unsafe and dangerous to do so. The plaintiff gave evidence to support his claim. He said that on the material day he was on his way to Chileka from Blantyre and on reaching Lunzu turn off he met with a friend, Alfred Kachingwe, whom he picked up as a pillion passenger. As they approached the Blantyre Water Board pumping station he indicated that he was going to turn right. He used both indicator and hand Signals. He was almost off the right hand side of the tarmarc when the vehicle which the defendant was driving ee hit the rear part of his cycle. He said it was only the rear wheel which was on the tarmac. The rest of the cycle was on the dirt verge of the right hand side of the road. As a result of the collision he and his passenger fell off the motorcycle onto the dirt verge. He sustained a bimall fracture of the right ankle and dislocation of talus and had to undergo surgery. This, he said, has resulted in one leg being shorter and he can neither walk properly nor walk long distances. He said he used to love playing football but can no longer do so now. It was further his evidence that the motorcycle he was riding was damaged beyond repair and ti.at it was valued at K1,500.00. It was however his evidence in crcss-examination that he had not seen the motorcycle since the day of the accident and that it had not been valued by a reputable garage. PW2, Dr. Michael King, was called to produce a medical report made by Dr. Rycken in respect of the plain- tiff. He cculd not recall ever treating the plaintiff. He was unable to assess the plaintiff's degree of incapacity if any. His evidence concluded the case for the plaintiff. The defendants also called two witnesses. It was the evidence of DW1, R- ald Chibisa, that on the material day he left Blantyre for Chileka Airport at about 6 p.m. in a Daihatsu Motorcar, BE 9037, belonging to the second defendants who were his employers at that time. On reach- ing the dipping tank before Blantyre Water Board pumping station he séw a Honda motorcycle, BE 6564, in front of him. It had no lights and was proceeding in the same direction as he was. There were two people on it and the Ppillion passenger had no crush helmet. He flushed his lights and switched his indicator to show that he was over- taking. At that time the motorcycle was on the extreme left hand side of the road. He said just before the pump- ing station he had just begun to overtake the motorcycle when it suddenly left the said left hand side lane for the right. He tried to brake and swerve back to the left but it was too late and they collided. He said his vehicle hit the rear mudguard of the motorcycle. He was travelling at about 40 miles per hour at the time of the accident. It was a dark evening and it was showering. He said he thought both the plaintiff and his passenger appeared drunk. DW2 was Constable Kapusa of Chileka Police Station who visited the scene of the accident and made a sketch Plan. He tcok the plaintiff and his passenger to Queen Elizabeth Central Hospital for treatment. Regarding the accident itself most of what he said was, in my judgment, hearsay. These are then the facts of the case. Each driver blames the other as the cause of the accident. I now have to decide who was at fault. in so doing, I bear in mind that this is a Civil case and that plaintiff only has to prove his case on the balance of probabilities in order to succeed. Ble eis Rule 41 of the Highway Code is to the effect that a driver should never overtake a vehicle unless he knows that he can do so without danger to himself or other road users. He is to be specially careful when dark and in fog, mist or dust, when it is more difficult to judge speed and distance. Indeed, subsection 4 of Section 164 of the Road Traffic Act is in the following terms: "(4) Failure on the part of any person to observe any provision of the Highway Code shall not in itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether Civil or Criminal and including proceedings for an offence against this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings". In the instant case, DW1, the driver of the motor vehicle told this Court that the accident took place in the evening after 6 p.m. It was dark and he had his light on. It was drizzling. He said he flushed his lights twice before beginning to overtake the plaintiff. He did not use his horn to warn the plaintiff. He said the motor cycle had no lights on it. On the other hand the plaintiff said he had lights on and before beginning to turn he gave both indicator and hand signals to show that he was turn- ing to the right having realised that there was a vehicle coming behind him. He denied being drunk at the time of the accident. I have very carefully considered the evidence before me. I have also had the opportunity of assessing each witnesses' demeanour. I find, as a fact that the accident alleged actually took place near the Blantyre Water Board pumping station on the Blantyre/Chileka Road on the material day. It was dark and dazzling. There is no doubt that the plaintiff was turning to the right. I have considered what both the plaintiff and DW1 said regarding who should be held responsible for the accident. I though the plain- tiff impressed me as a witness of truth and I found his story more credible than that of DWl. DW1 said that the motorcycle had no lights. With respect, it is possible that the tail light was not on but that does not necessarily mean that the headlamp was also not on. If DW1 had his full lights on it was in my judgment difficult for him to be able to see the light from the cycles headlamp, as they were going in the same direction and the motor vehicle's lights, most likely, subdued those of the motorcycle. Further, the plaintiff had travelled some distance on that road that evening. If it was dark and raining, it is most inconceiv- able that he had no lights. How was he able to see his way at the speed he was doing? I find, as a fact, that the motorcycle had its lights on at the time of the accident. It is then contended that the plaintiff suddenly turned on to the right lane to join a side road. With resSect, again I would believe the plaintiff's story. He Said he became aware that there was a motor vehicle coming because he saw its lights. Realising that he was about to turn right he indicated with the indicator and his hand that he was turning right. He subsequently begun to turn and was hit at the rear before he completed the exercise. DWi's story is that he flushed his lights two times and switched on his indicator to show that he was overtaking. He never hooted when he realised the plaintiff was turning right. With respect, if the plaintiff turned allover sudden then the most probable thing would have been that his motorcycle would have been hit on the front or middle part as opposed to the rear. Further the point of impact would have been somewhere in the middle of the road and not close to the right dirt verge. DW1l was following the plaintiff. As required by rule 41 of the Highway Code he should have made sure that it was not dangerous to overtake before doing so. He did not do so in this case. In the circumstances, I find that the accident was as a result of DW1l's negligence. I hold him liable for the accident and the second defendant is also vicariously liable for his act of negligence. The plaintiff has succeeded in his claim against the defendants. I now turn to the question of damages. The plain- tiff claims the sum of K1,500.00 being the value of the motorcycle which was involved in the accident. To start with, it is not clear whose motorcycle it was. No evidence was led to show that it was the plaintiff's motorcycle. Even the statement of claim just says "........ -the plaintiff was driving a motorcycle registration mark BE 6564 ...." If the motor cycle was not his and assuming it was a total loss,did the plaintiff loose anything? Damages are supposed to be a pecuniary loss and unless such loss is proved I do not see how a court can award any damages. Furthermore, the evidence on record is to the effect that it was the rear mudguard which was damaged. As a matter of fact, the plaintiff himself does not know the extent of the damage. He said he has never seen the motorcycle again after the accident. If the motorcycle was damaged to an extent requiring repairs the court does not have any evidence regarding the cost of such repairs. This is a special damage which must consist of all items of loss which must not only be specified but also proved before damages ¢an be awarded. On the evidence before me, I find that the motorcycle BE 6564,whose owner is unknown, was damaged in the accident but the extent of damage cannc. be ascertained, I am, in the circumstances, unable to award any damages on this head. Regarding the injuries sustained by the plaintiff he is said to have sustained a bimalleolar fracture of the right ankle with dislocation of the talus. He was in hospital from the 13th of February, 1982, to 21st of April, Die fe 1984,and was thereafter treated as an outpatient up to 7th September, 1982. According to the medical report, Exhibit 1, he will suffer 15% permanent incapacity although he will be able to perform his previous job as a debt collector. There is no evidence before me of any loss of earnings. The plaintiff simply said that when he returned to work he was demoted to be an accounts clerk because he could not ride a motorcycle, He did not specify how much he lost. He is now a debt collector again. I award the plaintiff a sum of K4,500.00 for pain and suffering and loss of ameni-~ ties. The defendants are condemned to pay the costs of this action. PRONOUNCED in open Court this 16th day of November, 1987, at Blantyre. R. P. Mbalame JUDGE