Bernadette Munthali and Anor v Kuiasu Auto Services Limted and Anor (2017/HP/456) [2024] ZMHC 126 (3 May 2024)

IN THE HIGH COURT FOR ZAMBIA 2017/HP/456 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BERNADETTE MUNTHALI O'BRIEN P S MUNTHALI AND PRl 'CIPA '1 T p, AINTIFF 0 3 MAY 2024 t NfL 11,AINTIFF /0 REGSTRI 3~ . Q Eo;. 500 7, LUS~f\~ KUIASU AUTO SERVICES LIMITED GOLDEN MWANZA 1 ST DEFENDANT 2ND DEFENDANT Before the Honorable Mr. Justice C. Kafunda in Open Court on the 3 rd day of May, 2024 For the Plaintiffs For the 1s t Defendant For the 2 nd Defendant : Mrs R. P. Bwalya - Amani Legal Practitioners : Mr M. Mulele - G. M Legal Practitioners : No Apperance JUDGEMENT CASES REFERRED TO: 1. Ozokwo v Attorney General (No 2) (1985) Z. R 216 2. Duly Motors Ltd v Patrick Katongo and Livingstone Motor Assemblies (1986), Z. R 61 3. GDC Hauliers Zambia Limited v Trans-Carriers Limited (SCZ Judgment No. 7 of 2001) 4. Phillip Mhango v Ngulube and Others4 (1983) Z. R 61 (S. C). 1.0 INTRODUCTION This the Plaintiffs' claim for damages for negligence against the Defendants arising out of a road traffic accident which occurred on the Lusaka-Kafue Road on 30th July, 2016. The Plaintiffs contend that the 1st Defendant is vicariously liable for the damage suffered as a result of the accident allegedly caused by the 2 nd Defendant's negligent driving. 2.0 PLEADINGS The Plaintiffs instituted the suit by way of Writ of Summons and Statement of Claim on 21 s t March, 2017. The Writ of Summons and Statement of Claim was amended without leave of Court on 23rd March, 2017. The reliefs sought by Plaintiffs are as follows; i. Damages for negligence ii. Compensation for the loss of use of motor vehicle Toyota Spacio registration number ALZ 9728. iii. Special damages in the sum of K 71,600 iv. Damages for stress, psychological trauma, physical exhaustion, stretched budgets, induced debts and other similar consequences. v. Interest on money found due vi. Any other relief the court may deemfit. vii. Costs J2 The Plaintiffs pleaded that the 1st Plaintiff was at all material times the registered owner of the motor vehicle Toyota Spacio registration number ALZ 9728 , which was being driven by the 2 nd Plaintiff at the time of the accident. The Plaintiffs further averred that the accident occurred on 30th July 2016 at Lilayi traffic circle along the Kapus Road when the Daff truck ahead of the Plaintiff stopped before the traffic circle. The 2 nd Plaintiff correspondingly halted his motor vehicle , in order to allow in circle traffic to pass. It was averred that the 2 nd Defendant who was driving a Dong Feng tipper truck behind the 2 nd Plaintiff failed, neglected or refused to stop his motor vehicle and directly hit into the Motor vehicle driven by the 2nd Plaintiff, causing it to involuntarily move and hit into the Duff truck in front of it. It was also averred that the 2 n d Defendant confessed after the accident that the breaks were faulty and the photos taken of his truck showed that only the rear left brakes of the truck were functioning . It was contended that the 2nd Defendant was negligent in causing the road traffic accident and that 1st Defendants was being the employer of the 2 n d Defendant vicariously liable for J3 the damage occasioned to the Plaintiffs. The particulars for negligence were set out as follows; i. Driving the motor vehicle which was not road worthy ii. Failure to keep a proper look out iii. Failure to properly control the motor vehicle iv. Driving at a speed which was excessive in the circumstances v. Failure to avoid colliding in into the 1st and 2 nd Defendant's motor vehicle, and vi. Failure to obey the rules on required distances between road traffic. It was further averred that the accident caused the 1s t Plaintiff's motor vehicle to get held between two trucks causing it to sustain damages both in front and rear. It was further stated that the 1s t Plaintiff's motor vehicle was the only transport available for ferrying the family to and from work, make school runs , deliver farm produce and inputs and attend to other daily chores. It was stated that the Plaintiffs live at a farm in an area called Mapepe, located in Chilanga District about 30 km from Lusaka city where much of their commercial and work life exists. The said area is not accessible to public transport. J4 According to the Plaintiffs, the accident caused aggravated loss and damage to the Plaintiffs and the particulars for the special damage were set out as follows; i. Diversion of funds towards use of the tax cabs and other modes of transport including segmented use of public transport which has over the months costed in excess of 71,600.00 The Plaintiff's averred that after the accident, the 1s t Defendants managing director apologised to the 2 nd Plain tiff and promised to take care of the transport costs until the issue was resolved . The 2 nd Defendant was later arrested and charged with the offence of dangerous driving at Chilanga Police Post, an offence which he admitted. It is further averred that despite assurances, the Defendants have refused, neglected or failed to pay compensation The Defendants filed a defence on 4 th April, 2017, wherein it was denied that the 2 n d Defendant was negligent and that the 1st Defendant agreed to compensate the Plaintiffs until the issue was resolved. It was further stated that the 1st Defendant's motor vehicle (Dong Feng tipper truck) was insured and any damage to the JS Plaintiffs' motor vehicle would be taken care of by their insurers. The Defendants averred that the 1st Defendant followed the due process of the law and notified the insurers who initiated a process to have the said vehicle repaired but that it was the Plaintiffs who by their conduct caused delay in the insurance claim being processed by stopping the process. The Plaintiffs filed a reply to defence on 5 th June, 2019, wherein it was averred that the 2 nd Defendant was charged with the offence of dangerous driving and that the breaks for the Defendants' motor vehicle were defective. It was further averred that the 1st Defendant visited the Plaintiffs to view the damaged motor vehicle and offered K30,000 which the Plaintiffs declined as according to them, the appropriate costs of their vehicle was about K60,000. An alternative of Mercedes Benz Motor vehicle was offered but was rejected by the Plaintiffs because of High Maintenance Costs. It was averred that the 1st Defendant kept on bringing different entourages of assessors with no credentials and later changed their insurers to Golden Lotus Insurance. That all the quotations procured by the Plaintiffs in respect of the damaged vehicle showed that the vehicle was damaged J6 beyond economic repair and the same were submitted to Golden Loftus Insurance Company. Notwithstanding, the 1st Defendant insisted on repairing the motor vehicle despite the vehicle being damaged beyond economic repair. 3.0 EVIDENCE AT TRIAL The matter came up for trial on 23 th February 2022 and 1st November, 2022. PWl was Bernadette Phiri Munthali, the 1s t Plaintiff herein. She testified that around July, 2016, a vehicle registered in her names, namely, Toyota Spacio registration number ALZ 9728 and driven by the 2 n d Plaintiff, who is her husband, was involved in a road traffic accident with a Dong Feng tipper truck. The matter was handled by Chilanga Police Station. It was the testimony of PWl that she took all documents related to the motor vehicle to Chilanga Police Station and was advised that the other vehicle involved in the accident was insured with Zambia State Insurance Company (ZSIC). She was further told that the owner of the Dong Feng tipper truck, a Mr. Young, would meet her at Chilanga Police Station but that he was nowhere to be seen. J7 PW 1 testified that she managed to locate Mr. Young's offices and that she later availed all the document to him. After a month, PWl was advised to avail the documents to the insurers called Golden Lotus Insurance, who however advised PWl that Mr. Young was not their client. It was the testimony of PWl that after some time, Golden Lotus Insurance sent a quotation for via email. She however disputed the quotation on the basis that all garages she had earlier approached, informed her that the vehicle was damaged beyond . economic repair. . PWl testified that the motor vehicle, involved in the accident was the only vehicle the Plaintiffs had to transport children to school and for business purposes. She stated that her husband, the 2 nd Plaintiff herein was a full-time farmer and as a result of the accident, they ended up incurring costs until the time they managed to repair an old motor vehicle which they are currently using. PWl indicated that she wanted the motor vehicle to be replaced and also compensation for the stress caused. Under cross examination, PWl admitted that her motor vehicle was comprehensively insured by Meanwood Insurance Company for the value of ZMW 40,000.00. J8 It was admitted that the registered owner of the Dong Feng tipper truck, according to the police report, is Sikale Wood Manufacturers. It was further admitted that the insurance documents show that Sikale Wood Manufacturers, is the owner and insured party of the truck but that they are not party to these proceedings. It was also clarified that the old motor vehicle was repaired to mitigate losses towards the end of 2019 or early 2020. PWl confirmed that the Plaintiffs received between K34,000 to K36,000 as insurance pay out from Meanwood Insurance Company in respect of the damaged vehicle. It was admitted by PWl that none of the receipts produced in relation to the claimed expenses bore her name but rather that the same were issued in the names of Lillian N Munthali, which is a company name and that some of the receipts bore the names of the 2 nd Plaintiff, who is her husband and a party to these proceedings. In re-examination, PWl clarified that the Plaintiffs approached Sikale Wood Manufacturers who told them that they had sold the truck in issue to Mr. Young. That the records at the Road Transport and Safety Agency (RTSA) had however not been changed. J9 '---- - - - - - - PW2 was Peter Obrien Sichintu Munthali, the 2 nd Plaintiff herein. He testified that on 30 th July, 2016, he was driving a motor vehicle namely, Toyota Spacio with registration number ALZ 9728. When he reached the Lilayi roundabout along Lusaka- Kafue road, a Daf Truck ahead of him stopped and he also stopped. As he was stationery, a Dong Feng tipper truck driven by the 2 nd Defendant, rammed into his motor vehicle, forcing it to ram into the Daf truck ahead. After the accident, PW2 testified that he asked the 2 nd Defendant why he could not stop his truck and that the 2 nd Defendant replied that he had problems with the brakes. The police came on the scene and the 2 nd Defendant repeated what he had told PW2 earlier. It was the testimony of PW2 that the 2 nd Defendant was charged with the offence of dangerous driving but that to his surprise, the charge was changed to careless driving. That it was only upon the intervention of a senior police officer, that the charge of dangerous driving was re-instated. The rest of PW2 's evidence is similar to the evidence of PW 1 hence I won't review it beyond this point. no By way of a consent order entered on 21 st March , 2024, it was agreed that the Defendants shall not testify in their defence but that they would instead rely on the defence. 4.0 FINAL SUBMISSIONS The Plaintiffs filed their submissions on 19th September, 2023. The attention of the Court was drawn to the renowned authors of WVH Rodgers and Jolowiz on Tort 16 Edition, on the definition of negligence, that it is a breach of a legal duty to take care , which results in damage to the claimant. It was submitted that the 2 nd Defendant's liability arises, from among others, the contravention of the Road Traffic Act Number 11 of 2002 by him negligently and recklessly causing the accident. It was further submitted that the Defendants owed the Plaintiffs , as well as the other road users a duty of care which was breached by the the 2 n d Defendant driving an unroadworthy vehicle, thereby causing the accident. As a consequence, the Plaintiff suffered damage. Thus, the 1st Defendant as owner of the offending vehicle was vicariously liable for the misdeeds of the 2 nd Defendant. Jll Further reliance was placed and on A Percy Charles worth on Negligence 6TH Edition (London, Sweet and Maxwell, 1997) wherein the learned authors at paragraph 190 state as follows; "The duty to exercise reasonable care involves the making of reasonable examination of the vehicle from time to time in accordance with practice of reasonable careful carriers. The breakdown of the vehicle is evidence of negligence on the part of the carrier throwing upon him the burden of showing that he exercised reasonable care and skill in detecting and remedying defects. The onus is very heavy one placed on the Defendants to discharge." As regards the claim for compensation for the loss of use of the motor vehicle and special damages, it was submitted that it was clear from the evidence that the Plaintiffs incurred costs in excess of K 71 ,600 over the period in which they had to use alternative means of transport. Reliance was placed on the case Ozokwo v Attorney General2, it was stated that; "A plaintiff who has been deprived of this something must be awarded realistic damages which will afford him a fair recompense for his loss." Reliance was also placed on the case of Duly Motors Ltd v Patrick Katongo and Livingstone Motor Assemblies 2 , wherein the Court considered a case in which a brand-new motor vehicle caught fire and was damaged beyond economic J12 repair. The Court ordered the second Defendant, to deliver to the Plaintiff, a new vehicle of substantially the same value as the car that was lost, bearing in mind inflation. It was submitted that the Court should always seek to place the innocent party in the position they would have been in, but for the act or conduct of the Defendant in question. It was argued that, this entailed compensation for the loss of use of the Plaintiffs' motor vehicle occasioned by the Defendants and also special damages for extra costs incurred as a result of the Defendant's negligence. It was further submitted that, as a. result of the accident and events incidental to it, the Plaintiffs have suffered stress, psychological trauma, physical exhaustion, stretched budgets and induced debts and that its only fair that this honourable Court awards the Plaintiffs damages. The 1s t and 2 nd Defendants did not file their final arguments. 5.0 DETERMINATION I have considered the pleadings, evidence adduced and the submissions by the Plaintiffs and the authorities cited therein. I will start with considering the claim for damages for negligence and in doing so, the question that immediately comes to mind is, what is the tort of negligence? The learned authors of J13 Winfield and Jolowicz on Tort, 13th Edition at page 45 state as follows: . . . . Negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. The ingredients necessary to prove negligence are stated as: (a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of duty; (b) breach of that duty; (c) consequential damage to B. The three ingredients on the tort of negligence must be established: (i) There must be a duty of care owed by the defendant to the plaintiff; (ii) There must be a breach of the duty of care owed to the plaintiff by the defendant; (iii) and the plaintiff must suffer damages as a result of such breach by the defendant. 11 The burden to prove that a defendant owes the Plaintiff a duty of care and that there is breach of that duty lies on the Plaintiff. Once proved, it is the duty of Defendant to compensate the Plaintiff for the injury caused as a result of the breach of that duty. The Learned authors of Halsbury's Laws of England 4th Edition page 662 explain how that duty is to be discharged in relation to key elements as follows; "The burden of proof in an action for damages for negligence rests primarily on the plaintiff who, to maintain the action, J14 must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established." Having considered the principal attendant to provm.g negligence, I must next consider whether the Plaintiffs have discharged their duty in proving negligence on the part of the Defendants. In doing so, I shall consider the elements of negligence stated above. The first element requires the Plaintiffs to show that there is a duty of care owed by the Defendants t o the Plaintiffs. In the present case, the motor vehicle involved in the accident was a Dong Feng tipper truck driven by the 2n d Defendant and allegedly owned by the 1st Defendant. It is indisputable that on the 1naterial day, both the 2nd Defendant an.d the 2 nd Plaintiff drove on the Lusaka Kafue road and were involved in a road traffic accident. Therefore, the 2 n d Plaintiff and the2 nd Defendant, being drivers of their respective motor vehicles, or being road users, along the Lusaka Kafue road on the material date , it is common cause that they had a duty, not only to adhere to the Road Traffic Act 11 of 2002, but also a duty of care to other road users. JlS It is thus the case that the 2 nd Defendant owed a duty of care to the 2 n d Plaintiff who was at the material time driving on the same road with the 2 nd Defendant. The next element is whether there was a breach of the duty owed by the 2 nd Defendant to the Plaintiffs. The evidence reveals that the 2 nd Defendant misjudged the clearance distance and rammed into 2 nd Plaintiff's stationery vehicle at the Liliya roundabout, along the Lusaka - Kafue road , causing it to involuntarily ram into the Daf truck ahead. This is outlined in the report from the Zainbia Police Service on page 4-5 of the Plaintiffs Bundle of Documents of 2 n d October, 2020. Misjudging the clearance distance on the pai-t of the 2n d Defendant is a clear indication that he failed to drive in a manner that was safe to other road users. There was also evidence laid before Court that the truck driven by the 2 n d Defendant had faulty breaks. There was no rebuttal of the said evidence before Court. It is obvious that the faulty breaks also contributed to the 2 n d Defendant's inability to bring his truck to a halt when the vehicle ahead of him stopped at the Lilayi t raffic circle. The 2nd Defendant ought to have known about the state of the brakes on his truck and the danger they J16 posed in the event that the truck failed to stop as it did on the material day. Therefore, the 2n d Defendant, in driving his truck in the manner he did, and in it 's state of disrespair, caused the accident to occur. It is on this premise that I am of the considered view that the 2 nd Defendant breached the duty of care owed to the 2 n d Plaintiff and other road users. I shall now move to consider the next element of damage and determine whether the Plaintiffs suffered damage as a result of the breach of the duty of care by the 2 nd Defendant. The evidence shows that the Plaintiffs' motor vehicle suffered damage both in the front and rear as a result of the accident which occurred 30th July, 2016 along Lusaka Kafue Road. Further, evidence reveals that the extent of the damage occasioned to the Plaintiffs' motor vehicle was beyond economic repair. It is therefore clear that the Plaintiffs' motor vehicle sustained damage as a result of the accident. And consequently the Plaintiffs also suffered damage. In view of the foregoing, I find that the Plaintiffs suffered damage as a result of the accident caused by the 2 n d Defendant as their motor vehicle was damaged beyond economic repair. J17 In view of the above, I find that the 2 nd Defendant was negligent in his actions against the 2 n d Plaintiff. The pleadings show that, apart from claiming liability against the 2 nd Defendant for negligence, it is also contended that the 1st Defendant is vicariously liable for the damage caused to the Plaintiffs. Having determined that the 2 nd Defendant was negligent against the Plaintiffs, what remains to be ascertained is whether or not the 1st Defendant is vicariously liable for the actions of the 2nct Defendant. In the case of GDC Hauliers Zambia Limited v Trans-Carriers Limited3 , the appellant was found to be vicariously liable for the negligence of an employee who caused a road traffic accident. The appellant sought to avoid liability by pleading that the employee was neither authorized to drive the truck nor engaged on the business of the appellant or in the course of his employment, when he got involved in the accident. The Supreme Court held that when there is credible evidence that an employee was actually authorised to perform tasks such as driving fellow workers, such evidence cannot be ignored and it will support a finding of vicarious liability if the worker was engaged on his employer's business. J18 The general law relating to the onus of proof for v1canous liability is set out in Halsbury's Laws of England (3rd Edition) Volume 28 p. 76 as follows: "78. Proof of vicarious liability. If it is sought to make a master liable for the negligence of one who is proved to have been employed by him as a servant of a particular class, and the act complained of was one which would in the ordinary course be within the scope of the employment of servants of that class, this is sufficient to establish a primafacie case that the act complained of was committed by the servant in the course of his employment .... " It is thus trite that for a master to be held liable for the negligence of someone employed by him, it must be established that the act complained of was done in the course of employment of the employee. In casu) I must first ascertain whether the Dong Feng tipper truck driven by the 2 nd Defendant belongs to the 1st Defendant before delving into the Vicarious liability attributed to the l st Defendant. In cross examination, PWl revealed that police report did not indicate the owner of the Dong Feng tipper truck but that he was able to see the narne, Sikale Wood Manufacturers on it. It was further stated that documents pertaining to the insurance claim indicated that the insured party and owner of the Dong Feng tipper truck driven by the 2 nd Defendant was Sikale Wood J19 Manufacturers, who is not a party to these proceedings. In re examination, PWl clarified that the Plaintiffs approached Sikale Wood Manufacturers and that they were informed that the Dong Feng tipper truck had been sold to Mr. Young. In paragraph 7 of the Defendants' defence it is admitted that the vehicle which was involved in the accident and driven by the 2 nd Defendant belongs to the 1st Defendant, in respect of which Mr. Young appears to be the proprietor. A further reading of paragraph 8 reveals that the 1s t Defendant proceeded to notify the insurer of the accident and that the insurance company initiated the process to have the Plaintiffs' vehicle repaired. From the foregoing, it is clear that the 1st Defendant admitted actual ownership of the Dong Feng tipper truck. This being the case, I find as fact, that the Dong Feng tipper truck was owned by the 1st Defendant. On the question of whether or not the 2 n d Defendant was acting in the course of ernployment when the accident occurred, it is the view of the Court that the fact that the 1s t Defendant notified the insurer to initiate the insurance claim process, goes to show that the 1st Defendant did not dispute that the 2 n d Defendant J20 was driving the truck in the course of employment for the 1st Defendant and I so find as fact. I therefore, find that the 1st Defendant is the owner of the Dong Feng tipper truck involved in the accident and that the 2 nd Defendant was acting within the scope of employment with the 1st Defendant when the accident occurred. Consequently, I find that the 1st Defendant is vicariously liable for the danger cause by the negligence of the 2 nd Defendant. The Plaintiffs have also pleaded compensation for the loss of use of the motor vehicle Toyota Spacio Registration Number ALZ 9728 and special damages. It is common cause that arising out of the accident which occurred on 30th ,July, 2016, the Plaintiffs' motor vehicle damaged was damaged extensively and was assessed to be damaged beyond economic repair. The evidence by the Plain tiffs was that the vehicle was the only vehicle they relied upon for transport for home use as well as for business as they lived about 30 km from the Lusaka city, in an area called Mapepe in the Chilanga District. It was contended that the Plaintiffs incurred losses by way of alternative transport expenses until they repaired their old motor vehicle at the end of 2019 or early 2020. J21 Evidence, however, shows that on 1st November, 2016, Plaintiffs received an insurance pay111ent of K34,000 from Meanwood Insurance Company, with whom the they had comprehensively insured the damaged motor vehicle. I am satisfied that the Plaintiffs have proved that they suffered loss of use of the motor vehicle and special damages from the date of the accident to the date when they repaired their old vehicle. Therefore, I find that the Plaintiffs are entitled to compensation for the aforesaid period. The other relief claimed by the Plaintiff is for damages for stress, psychological trauma, physical exhaustion, stretched budgets, induced debts and other similar consequences. I am mindful of the fact that the obligation lies of the Plaintiffs to prove their claims, but, I note that no evidence was placed before the Court to substantiate the claims for the foregoing reliefs being sought. In fact, In cross examination, PW2 clearly, indicated that he didn't have any evidence that he was treated for any psychological trauma or stress. I am guided by the clear elucidation of the law pertaining to damages as discussed by the Suprerne Court in the cited case of Phillip Mhango v Ngulube and Others4, wherein it was stated as follows; J22 "the result is that the evidence presented to the court was unsatisfactory and, in our opinion, the learned trial judge would have been entitled either to refuse to make any award or to award a much smaller sum, if not a token amount in order to remind litigants that it is not part of the judge's duty to establish for them what their loss is." Regard to the foregoing, I find that the Plaintiffs have failed to prove that they suffered any stress, psychological trauma, physical exhaustion, stretched budgets, induced debts and other similar consequences as a result of the accident. Consequently, the Plaintiffs' claim in that respect must fail. In view of the fact that the Plain tiffs have partially succeeded as held above and considering the evidence that the Plaintiffs received a payout in respect of the damaged motor vehicle, I am guided by the holding of the Supreme Court in the case of Phillip Mhango v Ngulube and Others (supra) where it was held that the salvage value of the motor vehicle is deductible from the amount of damages awarded. It is on this premise that I hold that the payout received by the Plaintiff from Meanwood Insurance must be deducted from the damages awarded. J23 6.0 CONCLUSION For avoidance of doubt, I find as follows; 1. that the 2 nd Defendant was negligent in his actions and that the 1st Defendant is vicariously liable for the damage caused to the Plaintiffs because of the negligence of the 2 nd Defendant. 11. that the Plaintiffs are entitled to compensation for loss of use of the motor vehicle and that this includes current replacement cost of the damaged vehicle and to special damages from 30th July, 2016 to when they repaired their old vehicle. The sums payable are to be assessed by the Deputy Registrar. 111. that the Plaintiffs' claim for stress, psychological trauma, physical exhaustion, stretched budgets, induced deb ts and other similar consequences fails for lack of evidence. The award in (ii) shall be less the amount received by the Plaintiffs as insurance payout. The amount found due shall attract interest at an average short-term bank deposit rate from the date of writ of summons to the date of judgement and thereafter at the current lending rate as determined by the ban.k of Zambia until payment. J24 Costs to the 1st and 2 nd Plaintiffs and to be taxed in default of agreement. Leave to Appeal is granted. J25