Kawonga v Katalama (Civil Cause 412 of 1988) [1993] MWHC 48 (20 January 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 412 OF 1988 BETWEEN: Cc. Ys KAWONGA eeseeoeeene GPP eeeeeseeveee eevee PLAINTIFF ~ and - A. A. KATALAPIA ere er ®t enwmesvsewnaeveeereean ees ene VEFENUANT CORAM: TAMbALA, J. Zimba (Miss), of Counsel for the Plaintiff jumbe (Miss), of Counsel for the Lefendant Chigaru, Official Court Interpreter Phiri, Courc Keporter ‘JUDGMENT This is a plaintiff's claim for gamages for personal injuries sustained after he was hit by the defendant's motor vehicle, a UVatsun Saloon, registration number BU 0760. it is claimed that che aefendant was negligent in the tanner that he arove tne vehicle at tne cime of che accident. The accident from which the plaintiff£ received che injuries, the subject of this claim, was witnessed by a number of persons. Unfortunately, there is so much conflict between the evigence for tie plaintiff and the evidence supporting the defendant that it must be clear that most of the witnesses who came to give evidence told lies. The evidence shows that during the early morning of 6th march, 1937, the plaintiff was walking along Ndirande-Blantyre Koad near Blantyre Girls Primary School when he was suddenly hit by a vehicle driven by the defendant. The impact «knocked him to the grouna and he became unconscious. he sustained a fraccure on his rignt leg. he also had a cut on his head. He was rushed to Queen Elizabeth Central Hospital where ie was aamitted. While in hospital Plaster of Paris was applied to the injured leg on three occasions essentially because on the earlier occasions it was not properly done. ie was discharged from hospital on 19th March. the chereafter continued to attend hospital as an outpatient. The injurea leg retained cast in che Plascer ot Paris till November, 1457 when it was removed. SST EEE Hie has since nealea. There is, however, a shortening of the leg by about % of an inch. There is serious conflict of evidence regarding tow the accigent took place. ‘The exact place of tne accident is also contested. The evidence of the complainant is that he was walking on the dirty verge of the roaa when the vehicie hit him from behind. re said that there was no other vehicle ioving from che opposite direction when he was hit. rie saia the collision took place about a meter from the ena of the tarmac road. This evidence was supported by several witnesses who came to testify in favour of the plainciff. The defendant said that the accident took place at a bena soon after he took off from a Zebra crossing. He said that he was passing a bus coming from the Opposite direction when he suddenly saw the plaintiff crossing the road from the right going to the left. he said that he applied emergency brakes and triea to avoid nitting the plaintiff. he said that his vehicle caught the plaintiff's right leg and hie was forced to swing round and fall on the tarmac road. This evidence was materially supported by that of Stanley Kamwendo, bW2. There was evidence given by Saizi Faki, Pw2 that tie defendant was driving his car very fast as ne approached the place where the accident occurred, Tne defendant denied that he was speeding at the material time. he explained Chat he had stopped at a Zebra crossing which is near the scene of accident. He said that after Starting his car from the Zebra crossing he had just changed from second into the third gear when the accident happened. he deniea that he was speeding. I found the evidence of the defendant more credible. Tnere is indeed a Zebra crossing near the scene of accident and before the crossing there is a sign warning that school pupils lay be crossing the road. Luring the Cime of the acciuent the road must have been busy with pedestrians and _ school pupils going to Blantyre Girls Primary School. it is very likely that some school pupils were crossing the road at the time when the Gefendant reached tne Zebra crossing. The defendant woula have been forced to stop at the crossing. PwZ and a number of witnesses for the plaintiff lied chat there was no Zebra crossing at tne place. They also lied when they saia that there was no Stop sign a few meters before the road joinea Blantyre-Chileka road. The defendant adduced credible evidence wnich showed clearly that there was a warning sign and a Zebra crossing just before the place of acciuent and a stop sign arter it. {i am inclined to believe the cefenaant that he was not Speeding at the time of the accident. PY SLT TRE ETT eer re eel ee ae ee : - mer Soe EMM EN EY PSR Renta ESAT TFPI SI ene Sea: Atter a close exafiination of tne evidence adaucea betore me, I woula find, as contended by the defendant, that the collision occurred soon after tne detendant's veiiicle passed a bus travelling in the opposite uirection. i aiso find tnat the plaintiff was crossing tne roaa from the rignt to che left when ne came into contact with the uetendant's vehicle. 1 furtner find chat che collision occurrea on the tarmac road. This tinding is supporteu by the fact that che sketch plan drawn by the Police who visitea the scene soon atter the acciaent took place snows bliood stains on the tarmac road. After considering these facts, i get the impression that the accicent occurred because the plaintiff did not take care to check and ensure tnat the road was clear of tiotor vehicles pefore ne crossed tne road. Tne plainctitfi's claim is basea on negligence. Tine law relating to negligence liability is based on the concept of the duty to take care. Regarding the duty placed on a ariver of a motor vehicle Mtegha, J., in the case of Ziaana ~v-_ Professor Chimphamba, Civil Cause No. 440 of 1967 (not reported) saia at page 7:- "The auty of a motorist is to take reasonable care, such as keeping a good look out, avoiding excessive Speed, (taking) proper control of nis veinicle ana observing road signs." Tne Law also casts similar aquty on a pedestrian. Tris duty was described oy banda, J., as he then was, in the case of Christina banda an infant by H. T. banda her next friend -v- Admarc ana Another, Civil Cause No. 273 of 1967 (unreported), at page 4, in the following terms ~ "A pedestrian also owes a duty of care to other road users to move with aque care. Althougn a peuestrian is entitled to walk along tiie carriage way, he is only entitled co tne exercise of reasonable care on che part of drivers of motor venicles.” i have considered the tacts of this case ang tie auty co take care which Cire law casts on a motorist ana [ am constrained to cowe to time conclusion that tne aefendant did not breach this duty to drive his motor vehicle on che relevant roada with reasonable care. The plaintiff's claim, therefore, fails. It is dismissed with costs. PRONOUNCED in open Court, this 2Uth Gay of January, 1993, at Blantyre. D. ee a JUDGE