Pendame v Powder (Civil Cause 685 of 1979) [1981] MWHC 1 (30 May 1981)

IN THE HIGH COURT OF MALAVYT AT BLANTYRE CIVIL CaUSE NO. 685 CF 1979 BETWEEN: ABRAHAM ARON PENDAME .. °° °° PLAINTIFF - and - BILLY POWDER ss a8 «6 2° eo IST DEFENDANT - and — Ae Oe As BHIMANIT os os a ee 2ND DEFENDANT - and - ABDUL HAMID DAUDI .. .. °° ee THIRD PARTY Coram 3 Banda, J. For the Plaintiff : Mbalame, Chief Legal Aid Advocate First defendant, not present : Unrepresented For the 2nd Defendant MNsiska of Counsel For the Third Party Mutuwawira of Counsel Official Interpreter sonani Court Reporter Magzibuko 90 90 068 6» JUDGMENT This action srises from ® motor accident in which the plaintiff's car was denuged as a result, it is alleged, of the first defendant's negligent driving of & car belong- ing to the second defendant. The facts relating to the Scola ais ere not greatly disputed «nd they are as follows; The plaintiff was on the material dé y, lewfully driving his motor car, Peugcot BC 6163 along Kamuzu Highway in Limbe when near the market street the first defendant hit his car from behind. It is conceded that at the material time the first defendant was in the employment of the third party. ‘while the latter has coneeded this fact he has, however, stated that the first defendant wes not engaged in csurse of his employ- ment when he negligently drove the second defendant's car. on fz Ay by, Nema, i ore “yy es 2, | a ii It seems to me that there is no dispute about the issue of negligence and neither dcfendant nor the third party scught to deny it. The only issue I have to deter- mine, therefore, is whether on the principle of respondeat superior, the responsibility for the negligence of the first defendant lics with the second defendant or the third party. Prima facie, where a relationship of master and servant exists the master is vicariously liable for the torts of his servant if they are committed in the course of employnent or when they are committed within the scope of his authority. Clearly, therefore, the third party who was the employer of the first defendant at the materiel tinc, has the burden of proof of shifting his prima facie responsibility for the negligence of his servant, the first defendant. The third party geve evidence and he stated that although the first defendant was his servant, he did not report for dutics on the day of the accident and that he did not authorise the first defendant to drive the second defendant's car. The third party also conceded that the second dbfendant was his regular customer et his garage but he denicd that the second defendant brought his car for repairs on the 4th December, 1978. The third party further stated that even if the second defendant had brought his car for repairs it was unlikely that he would have asked the first defendant to drive the car because the latter hed no driving licence and that there was always a driver whose duty it was to drive customers! cars. This evidence was substantially supported by the evidence of D.’/). 2 whe is the mechanic foreman at the third party's garage. It is true that there are differ- enees in their evidence but it seems to me that such differences as there are do not, in my view, affect the tenor of their cevidenec: that the first defendant did not revort for dutics on the 4th December, 1978; that the first defendant was not authorised to drive customers' cars and that the second defendant did not teke his car for repairs to the third party's garage on the 4th Deccmber, 1978. The second defendant, although present in court throughout, did not give evidence and his counsel informed the court that he was not calling any evidence and that he would rely on his submission of ‘no case to answer' which he had earlier made at the close of the plaintiff's case. Thore is, therefore, no other evidence other than the third party's on how the first defendant came to drive the second defendant's car. The first defendant did not appear at the trial nor, it would appear, were any plead- ings served on him. The third party has suggested that the first defendant drove the second defendant's car in pursuance of a purcly private urrangemcnt between them- sclves uncennectcd with the first defendant's cmployment with him. The tetal evidence cf the third party and his foreman remain une rntradictecd. Wr Msisia who aspearcad for the seccnd defendant has forecefully submitted thet the first defendant was at the material tine, engaged in course of his employicnt and he submitted that werc this not the case, the third party would not heve accepted responsibility to repair the plaintiff's car. Mr Msiska elso refcrred to the correspondence between the plaintiff's insurance company and the third party and he has urged t.is court to infer from this correspondence thet the third party accepted full responsibility ana that he could not have done so if the first defendant wes not cngeged in curse ef his cmployment. In my judgment «nd with due respect to Mr Msiske, his submission reflects a superficial review of the evidence on the issue. Both the plaintiff and the third party were in agreement on the question of repair of the plaintiff's car. Tne third party stuted thet he had accepted to repair the plaintiff's cer in ccurse of his business as a garage owner and that he could not refuse work from any customer. He made it clear, however, that the first defendent would be responsible forthe costs of the repairs. The plaintiff's evidence on this issue was to the same effect. He stated that the third party had told him that the first defendant would pay for the ecsts of the repeirs by deducting from his salary. That evidence, in my judgment, cennot be held to amount to an écceptance of liability. On tne contrary, it is clcar evidence of repudiation of any liability. I direct myself to the burden cf proof in civil cases which is proof on & balance of probcbilitics. I an satis- ficd thet the third party and his foreman told the truth when they said that the first defendant did not report for duties on the 4th December, 1978, and I accept their evidence. Consequently I find thet the first defendant did not report for dutics on the 4th December, 1978. I also find that the third party and his foreman told the truth when they said that the second defendant did not teke his car for repairs to the third party's garage on the 4th December, 1978. IT cannot see, in my judgment, how liability can attach to the third party in the absence of any evidence to show thet the first defendant was driving the second defendant's car as a servant of the third party. I am satisfied thet the third party has discharged his burden of proof of shifting his prima facie responsibility for the negligencc of his servant. The owner of & vehicle is not only liable if tho driver is his servant acting in ccurse of his cmployment but he is also lisble if the driver is his agent. The driver will be the cwner's agent if he drives the car on owner's busincss cr purpose. In my view, the negligent driving by the first defendant occurred when he was acting for his own purposes end his own benefit unconnec oted with wee third party's business. He drove the car purely as a result of @ privéte arrangement between himself and the see amnd defendant. I am satisfied that the ect of negligence did not cecur in course of his employnent or within the scope of his authority. It wes neither © wrongful act authorised by his employer nor was it a wrengful and unauthorised method of doing some act authorised by his employer. He was, as far as the third party was concerned, indulging in a floric of his own: Bone ue County C Council, vi Os iattormoles (tarage ) Ltd, (1953) 1 7. D. R. 997. I am sntisficd that the first defendant was, when he drove the second defendent’s ear, the lattcr'’s egent and consequently the sccond defendant is liable for the negli- gence of his agent, the first dcefendent. The clin against the third perty is dismissed with costs to be paid by the second defendant. I an, therefore, setisficd that the plaintiff has established his claim ugainst both the first and sccond defend nts. Or. the question of daciges, “r Msiska, for the second defendant hes submitted thet the plaintiff cannct obtain special damages unless they have been guentified and that it is the genoercl rule that particulars of specia. damages must be cleurly pleuded. “hile what iir Msiska says is truce, one has got to consider the facts cf each case and to sce whether the facts relating to special damages heve been pleadca with sufficient particulerity. The function of plcadings is to make it cleur to the cpposite party whet case he has to mect. In the present case, there cre on the pleadings twe quotations fron two different gor2ge and they were included in the oaffidevit of docuncnts nnd wore presumably inspected by the second defendant or his counsel. Mr Mbalame who appeared for the plaintiff subait- ted that damagcs could not have been pleaded with more particularity becsuse no bill te pay was ever prescnted to the plaintiff. In my judgment, looking at the whole cf the plaintiff's pleadings, I cannot help fecling that anyone looking 2t them must be aware thet special damages were being claimed. The fact thet damages c.nnot be assessed with certainty should not relicve the wrongdoer of the necessity of paying danagcs. There is no cvidence of the value of the plaintiff's car before end 2fteor the accidcnt and how far its value as depreciated as a result of the accident. mqually, there is no evidonee of whether as a result of the accident the plaintiff was put to sny extra expense. In the circumstances, the only basis of any damage must be the costs of the repairs to the plaintiff's car. It is the plaintiff's evidenee thet althcugh the third party ettempt—- ed to repeir the cer, the repnirs were not satisfactory and this is supportcd by the third party who statcd that the plaintiff complained to him ebcut the repairs done to his car. The purpose of “n award of damages is to restore the injured party to the position in which he was before the damage occurred; it is tc give him compensation for the damage, loss or injury he has suffered. As i heave already indicated carlier in this judgment, there are two quotations about the estimeted costs of repairs to the pleintiff's car. One is for 7801 and the other is for K1, 332.95. In my judgement, I would assess the plaintiff's damages at K1,200. There will, therefore, be judgment for the plaintiff in the sum of k1,200 with ccsts. PRONOUNCED in open court this 30th day of ay, 1931, at Blantyre.