Burak Investments Ltd and Ors v Banda (SCZ 3 of 2004) [2004] ZMSC 102 (3 February 2004)

SCZ JUDGMENT N0.3 OF 2004 (37) IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 3 OF 2003 HOLDEN AT KABWE AND LUSAKA ( CIVIL JURISDICTION) BURAK INVESTMENTS LIMITED BROWN NDUNA GDC HAULIERS LIMITED AND 1st APPELLANT 2nd APPELLANT THIRD PARTY PATSON BANDA RESPONDENT Coram: Sakala, CJ., Mambilima and Silomba JJS 5th August 2003 and 3rd February, 2004. For the Appellant: Mr. A. Dudhia of Musa Dudhia and Company. For the Respondent: Mr. F. S. Kongwa of Kongwa and Company. Sakala, CJ., delivered the Judgment of the Court JUDGMENT Cases Referred to; 1. Zambia State Insurance Corporation Vs Joseph Chanda (1990- 1992)ZR 175. 2. Central Refrigeration Company Ltd Vs Attorney-General (1977) ZR 69 For convenience, the 1st Appellant will be referred to as the 1st Defendant and the 2nd Appellant will be referred to as the 2nd Defendant, the 3rd Party will be referred to as the 3rd Party while the Respondent will be referred to as the Plaintiff, which designations they were in the court below. (38) This appeal arises from a Judgment of the High Court entered in favour of the Plaintiff, while the question of quantum of general damages was referred to the Deputy Registrar for assessment. The brief facts of the case are that on the 26th of June 1996, the Plaintiff was a passenger on the 2nd Defendant's Minibus, Registration No. AAN 5706, travelling from Kitwe to Lusaka. The Minibus was driven by the 1st Defendant, who was at the material time an employee of the 2nd Defendant. There was evidence, accepted by the court, that while the Defendant was trying to overtake the 3rd Party's truck, there was at the same time an oncoming vehicle. While the 1st Defendant managed to overtake, the truck hit the Minibus from the rear. The Plaintiff who sustained several injuries, was admitted to Kabwe General Hospital for three days. Upon being discharged from Kabwe General Hospital, he was again admitted at the University Teaching Hospital where he spent forty-four days receiving treatment. The evidence of the Plaintiff was that, as a result of the accident, he sustained injuries on the head, right hand and on his back. He testified that before the accident, he was making and selling metal dishes which earned him an income of KI,500 per day off normal working hours. He was in receipt of a monthly salary of K39,000 from his employer, ESCO. The accident did not affect his work at ESCO. His employer continued paying (39) him the salary even when he was not working. According to the Plaintiff, his employer paid all his medical and transport costs. He was also in receipt of K10,640 per month as compensation from the Workman's Compensation Board. The 2nd Defendant paid him KI,350,000:00 ( One Million three Hundred and fifty thousand Kwacha.) The learned trial judge considered the Plaintiff's evidence which was the only evidence before him, as the Defendants, as well as the 3rd Party, did not adduce any evidence in Defence. The learned trial judge accepted the evidence of the Plaintiff that at the time the 1st Defendant was overtaking the truck, there was an oncoming vehicle. The learned Judge pointed out that what could safely be presumed from the conduct of the 1st t Defendant was that he panicked to get back to his left hand side of the road upon seeing the approaching vehicle without safely judging the speed at which the Minibus was travelling and the distance between the two vehicles. The learned trial Judge pointed out that had the 1st Defendant exercised restraint or maximum patience not to overtake, the accident could have been avoided. The learned trial judge concluded that, in the absence of any evidence that the 1st Defendant was not in any way obstructed by any other vehicle or whether conditions from seeing the oncoming vehicle, the 1st Defendant was negligent in the manner of his driving. The court was satisfied on the balance of probabilities that the Plaintiff had proved the issue of liability. On special damages, the claim for transport and expenses and loss of salary failed. On general damages, which included damages for pain, suffering and loss of future earnings, the court ordered that the same be assessed by the Deputy Registrar. The three grounds of appeal are: 1. That the learned judge erred in law in not finding that there had been a valid accord and satisfaction of the Plaintiff's claim; (40) 2. That the learned judge erred in fact and in law in his findings regarding how the accident occurred as the same were not based on evidence before the Court; the learned judge erred in his findings that the manner in which the accident occurred was uncontroverted and not in dispute; the learned judge ought to have applied the maxim that "he who alleges must prove;" and if the learned judge had done so the case would have been dismissed. 3. That the learned judge erred in fact and in law in his finding that the Plaintiff was entitled to damages for pain and suffering and the learned judge further erred in law by stating that the amount of damages for pain and suffering should be more than KI,350,000:00. Mr. Dudhia, on behalf of the Appellant, relied on the written heads of argument based on the three grounds. Ground one of the appeal attacks the earlier learned Judge's ruling on a preliminary issue raised by the defendants on whether or not the Plaintiff had any cause of action against the Defendants in the light of a 3rd Party Release Form executed by the Plaintiff. The court ruled that there had been no valid accord and satisfaction and proceeded to hear the main cause. The ruling on the preliminary issue was delivered on 14th July, 2000. The notice of appeal filed on 19th November, 2002 complains only of being dissatisfied with the judgment given on 28th October, 2002 and that the appeal was against the whole of that judgment. In other words, there is and there has never been any appeal against the ruling on the preliminary issue. Ground one in (41) our view was misconceived. But assuming the ground was not misconceived, we would agree with the advocates for the Plaintiff that the facts of this case are on all fours with the facts in the case of Zambia State Insurance Corporation Vs Joseph Chanda(l) that as there was no valuable consideration to render the release agreement binding upon execution, the Respondent/Plaintiff was not estopped from claiming his right to damages for pain and suffering. On this basis ground one fails too. The gist of ground two is that the Plaintiff did not prove the case of negligence and attacks all the findings of the learned trial judge regarding how the accident occurred. We agree that he who alleges must prove. The arguments on ground two, in our view, overlooked the fact that the Plaintiff was the only eye witness who gave an account of the events leading to the accident. Whether the learned judge made assumptions or not, the crucial and most relevant evidence adduced by the Plaintiff was that the 1st Defendant, an employee of the 2nd Defendant, was overtaking the 3rd Party's truck in the face of an oncoming vehicle, when the 3rd Party's truck hit the Minibus being driven by the 1st Defendant from the rear. The 1st Defendant, the 2nd Defendant and the 3rd Party, in the face of the Plaintiff's evidence elected not to give their side of the story. A prudent driver does not overtake another vehicle in the face of an oncoming vehicle. The learned trial judge was entitled to find that the 1st Defendant was negligent in the manner of his driving. We reaffirm what we said in Central Refrigeration Company Ltd Vs Attorney-Generai(2) that it is the duty of any driver, who intends to change directions, to make sure that it is safe to do so, and that his proposed manoeuver will not endanger or inconvenience other road users. In relation to the present case, we wish to emphasize that it is the duty of any driver intending to overtake another vehicle to make sure that the proposed overtaking will not endanger or inconvenience the vehicle or vehicles being overtaken or on-coming or other road users. Ground two of appeal fails. (42) Ground three attacks or complains against the finding that the Plaintiff was entitled to damages for pain and suffering. This complaint is based on the trial Judge's observation that the Plaintiff deserved more than just the KI,350,000:00 compensation. We take note that the trial judge ordered that general damages, which included damages for pain and suffering, be assessed before the Deputy Registrar. We do not therefore wish to prejudice the out come of the out of the assessment, if it has not yet taken place. But the undisputed facts are that the Plaintiff sustained injuries in the accident which resulted in his three days admission in Kabwe General Hospital for treatment and thereafter he was hospitalized at the University Teaching Hospital for 44 days. The Plaintiff in these circumstances must be entitled to damages for pain and suffering. Ground three must also fail. The three grounds having been unsuccessful, the appeal is dismissed with costs against the first and second Defendants to be assessed in default of agreement. The 3rd Party having not appealed, we make no order of costs against them. E. L. Sakala CHIEF JUSTICE | 'i I. C. Mambilima SUPREME COURT JUDGE /rmc S. S. Silomba SUPREME COURTJUDGE 6