Vilili v Prime Insurance Company Limited (Civil Cause 647 of 2015) [2017] MWHC 122 (22 May 2017)

Chrissy Vilili v. Prime Insurance Company Limited Kenyatta J. Nyirenda, JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO 647 OF 2015 BETWEEN CHRISSY VILILI ( on her own behalf and on of the Estate of of the Beneficiaries behalf CATHERINE VIL IL I, Deceased) ..................... ................. PLAINTIFF -AND- PRIME INSURANCE COMPANY LIMITED ............ ......... DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Khan, of Defendant, absent Mr. 0. Chitatu, Court Clerk for the Plaintiff Counsel, Kenyatta J Nyirenda, JUDGEMENT The Plaintiff "Deceased"] beneficiaries therefore, is the second born daughter the [Hereinafter called and bring this action on her own behalf and on behalf of the It is, of the Estate of the Deceased. that the Court settles denies The Defendants through the issue of liability liability. full trial. incumbent of Chrissy Vilili The Statement of Claim is brief and the substantive part thereof it is as follows: "2. The Defendant was at all material times the insurer of Motor Vehicle which was at the material Registration time insured Number BQ 3769 Toyota Dyna Pick-Up under Certificate 03/04/12 the Road Traffic Act. and the Defendant of Insurance Number 10475597 for the period of 04/01/12 to 148 of under Section is being sued in such capacity Chrissy Vilili v. Prime Insurance Company Limited Kenyatta Nyirenda, J. 3. On or about I ih March, 2012 at around 9:00 hours, Mr. Gilbert Motor Vehicle of Liwonde driving direction bags of rice when upon arrival control of the said motor vehicle towards Registration Number BQ 3769 Dyna Pick-Up Mtaja with twelve passengers on board and twenty at or near Machinga Trading Centre he lost once. and it overturned Michase was from the 4. The said accident Motor Vehicle Registration Number BQ 3769 Dyna Pick-Up. was wholly caused by the negligence of the driver of the said Particulars o{Negligence a. Driving at an excessive speed in the circumstances. b. Failing to have any or any sufficient regard of the plaintiff c. Losing control of the said motor vehicle d. Failing vehicle to stop or slow down or swerve or so to control as to avoid this accident the said motor e. Generally failing to observe road traffic rules and regulations. f In the alternative, the Plaintiff shall rely on the doctrine of res ipsa loquitor to prove negligence 4. As a result of the accident and died upon arrival herein, at Machinga District Hospital Catherine sustained Deceased, Vilili, head injuries And the Plaintiff claims: a. Damages for losss of expectation of life. b. Damages for loss of dependency. c. Costs of this action" contests the action and, accordingly, each and every allegation Defendant specifically Number BQ 3769 Dyna Pick-Up denies being the insurer a defence was filed. The of of fact contained in the Statement of Motor Vehicle also (motor vehicle). The Defendant being to the owner of the motor vehicle the owner of of insurance to indemnifying in the contract between that its liability, if any, is (a) subject of the accident in respect and (b) limited The Defendant denies Defendant Claim. The Registration pleads found liable the motor vehicle itself and the owner of the motor vehicle. to the maximum liability It is trite that a claimant lawsuit. on a balance [2002-2003] MLR 43 (SCA). In a civil case, like the present one, a plaintiff of probabilities: see Commercial has the burden of proving the elements has to prove his or her case Bank of Malawi v. Mhango of his or her Chrissy Vilili v. Prime Insurance Company Limited Kenyatta Nyirenda, J. follows that in the present It, therefore, as the party who has asserted the affirmative to prove on a balance that she sustain ed injuries was caused by negligence Civil Ca'us and suffered damage as a result of the accident of the Defendant: see B. Sacranie v. of 1991 (unreport e No. 717 case the burden of proof is on the Plaintiff ESCOM, HC/PR which ed). of probabilities The Plaintiff his Witness called two witnesse Statement whose material s. The first witness part reads: was Robert Janatu. He adopted "J. On or about Jih March, 2012 at around 9:00 hours I was cycling my bicycle from Nsanama heading towards Liwonde. 2. However, upon arrival at or near Nsanama Roadblock which was driving moving in the right lane of the road. from the direction of Liwonde heading I saw a motor vehicle towards Ntaja. It was 3. As soon as the driver tried to swerve to his lane, the left lane, the said motor abnormally. It was moving in zigzag fashion consequent overturned to control since the driver failed the said started moving vehicle which the said motor vehicle motor vehicle. 4. Consequently, the Deceased, from the said motor vehicle motor vehicle. whom I later on learnt but was hooked by the passenger fell door of the said to be Catherine Vilili, 5. When the said motor vehicle that the Deceased came to a halt I went to see what happened that were also travelling in the said and other people that the said Motor injured. I also discovered and I Mere severely confirmed motor vehicle Vehicle's Registration Number was BQ 3769 Dyna Pick Up. 6. I verily that the said accident believe of the said motor vehicle control or manage the said motor vehicle. in that he was speeding " was caused by the negligence to of the driver in him failing which resulted The second person to testify was the Plaintiff witness as his evidence himself (PW2). terms: and it is in the following statement, in chief, He adopted his and I Vilili, Deceased "J. I am the second born daughter of late Catherine of the of the beneficiaries grant to the with limited I am also an Administratrix on my own behalf and on behalf this action commenced Deceased said Estate herein. Estate of Catherine Vilili, Deceased. 2. I hail from Chabwera and currently am resident Traditional Township. at Liwonde Village Authority Silola in Machinga District 3. I do the business of selling secondhand clothes at Liwonde Market. Chrissy Vilili v. Prime Insurance Company Limited Kenyatta Nyirenda, J. 4. My late mother used to do the business more often due to the nature travel of her said business. of selling secondhand clothes and used to 5. On or about J 7'h March, 2012 at around 09:00 hours Catherine Vilili, Deceased was going to Ntaja Market to sell her secondhand clothes. Defendant's at Liwonde insured en route to Ntaja. Number BQ 3769 Dyna Pick Up She boarded the Registration Motor Vehicle 6. upon arrival However, motor vehicle once. I exhibit lost control hereto of the motor vehicle a copy of the Police Report Centre consequent marked as CV 1. of the said the driver which it overturned at or near Machinga Trading 7. As a result injuries of the Medical and died upon arrival marked as CV 2. of the said accident Report my late mother, Catherine Hospital. Vilili, I exhibit head a copy hereto sustained at Zomba District 8. My late mother was survived by myself James, Silvia, on her. dependent McDonald, Violet, and my siblings, namely, Esther and Upile. We were all Joyce, Chisomo, William, 9. However, due to her wrongful and untimely the Deceased Estate have and the other death herein myself support and loss of financial suffered siblings including difficult we are finding it extremely to maintain ourselves. 10. I therefore commenced this action against the Defendant claiming damages for,· i. Loss of dependency. ii. Loss of expectation of life, iii. The sum of MK6, 000.00 for procuring the Police and Death Certificate. iv. Costs of this action. " PWl tendered marked as Exhibits the Police Report and the Medical Pl and P2 respectively. Report and the same were The Defendants being absent, there was no cross-examination of the witnesses. The case of Blyth v. Birmingham statement is famous for its classic made the following be met. Baron Alderson Waterworks Company (1856) of what negligence is and the standard 11 Ex Ch 781 of care to famous definition of negligence: "Negligence considerations doing something might have been liable is the omission to do something which a reasonable man, guided upon those which ordinarily which a prudent the conduct and reasonable regulate of human affairs, would do, or man would not do. The defendants for negligence, they omitted if, unintentionally, to do that which a Chrissy Vilili v. Prime Insurance Company Limited Kenyatta Nyirenda, J. reasonable precautions person would have done, or did that which a person taking reasonable would not have done" in negligence to succeed, the plaintiff For an action duty of care owed to him or her; (b) the duty has been breached; of that breach he or she has suffered loss and damage: [1932] AC 562 quoted with approval by Ndovi J., as he then was, in Kadawire Ziligone and ( c) as a result v. Stevenson v. and Another [1997] 2 MLR 139 at 144. must show that (a) there was a see Donoghue In Banda and Others v. ADMARC and Another [1990] 13 MLR 59, Justice Banda, as he then was, stated the duty of care owed by a driver of a motor vehicle to other road users as follows: owes a duty of care to other road users not to cause damage of a motor vehicle "A driver and property to persons, vehicles reasonable circumstances. speed, care which an ordinary A reasonably keeps a good look-out, skilful and observes driver skilful the road. He must use under all the driver would have exercised has been defined as one who avoids traffic signs and signals. " of anyone on or adjoining excessive Insurance of a motor vehicle Company Ltd has a duty look out and to drive at such speed as would allow him to speed: see Mponda v. Air Malawi Limited This means that a driver· of a traffic signs and signals and and the distance the case of Mhango v. Positi 2 MLR 402 is for the proposition and National that a driver Further, [1995] to always keep a proper stop well within motor vehicle avoid driving another [1997] which will allow him to stop in case of sudden emergency. speed, question, the amount of traffic on the road at the material and another, expected to be on it: see Kadawire must, among other matters, at excessive he can see to be clear. observe 2 MLR 131. Furthermore, it is a driver's the courts will have regard to the nature, v. Ziligone condition supra.· duty to drive at a speed In deciding and use of the road in time or which might be reasonable It is also impotant to bear in mind that if the driver without seeing that person or was not keeping a sufficient to the limited 149 AC 264 per Scrutton object look-out he may be placed in the dilemma or object strikes a person he or that he was driving too fast having regard look that could be kept: See Evans v. Downer & Co Ltd (1933) that either LJ. the evidence herein and it is my finding that the accident was of the motor vehicle. He drove the I have considered caused by want of care on the part of the driver motor vehicle at such an excessive speed that he failed to control it. Consequently, the motor vehicle overturned that the driver of the motor managed to control the motor vehicle and avoided the accident herein. As the is bound under section 148 of the Road Traffic Act to matter stands, the in the Deceased's en at a reasonable death. Had it been speed, vehicle had driv and resulted Defendant he could have Chrissy Vilili v. Prime Insurance Company Limited Kenyatta Nyirenda, J. compensate a result the Plaintiff of the said accident. for the wrongful death that was inflicted on her mother as I, acco rdingly, enter ju dgment in favour of the Plaintiff with costs and order that ·the collateral issue of assessment of damages in respect of the claim for loss of of life and loss of expectation be dealt with by the Registrar. dependency I wish to make a comment or two on the conduct Before resting, Smith and Associates. Defendant to conduct Associates who acknowledged November Summons of Directions of Documents on 12 February appeared The Court record shows that they were retained by the defence of this case. It is Messrs Russell, Smith and of service of writ of summons on 1 ih 2012, filed the Defence on 15th November 2012, accepted on 21st February 2014, accepted 2014, accepted service of of Plaintiffs List Trial Bundle Trial Bundle on 21st May 2015 and 2015, filed the Defendant's for trial on 25th May 2015 and 19th October 2015. on 23rd February of Plaintiffs service service receipt of Messrs Russell, on 2ih April 2017, I pointedly 2016, court process When the case came for hearing Khan why is it that since 19th December served on Messrs Russell, Counsel Khan informed the Court that when Messrs Mbeta & Co. sought to serve Notice of Hearing on Messrs Russell, Smith and Associates, service on the ground that Messrs Russell, Smith and Associates represent Smith and Associates but directly the Defendant. the latter refused had ceased to was no longer being asked Counsel on the Defendant. Order 67 of the Rules of the Supreme changing, appointing . of RSC are relevant or removing Court (RSC) contains the procedure on the record. Rules 1 and 2 of 0.67 a solicitor for Order 67, r. l of the RSC provides: without "1. -(1) A party to any cause or matter his solicitor and copies is .filed solicitor .former until the final conclusion of Appeal of the notice subject shall, an order .for that purpose who sues or de.fends but, unless by a solicitor may change of the change and until notice in accordance with this rule, the are lodged and served to rules 5 and 6, be considered of the party the solicitor in the High court or the Court of the cause or matter, whether Order 67, r.6 is as follows: "(1) Where a solicitor act and the party has not given notice intention .for an order declaring to act in person in accordance that the solicitor of change in accordance with rule 4, the solicitor has ceased to be the solicitor with rule I, or notice may apply to the Court for the party acting who has acted .for a party in a cause or matter has ceased so to of Chrissy v. Prime Insurance Vilili in the cause or matter, an order accordingly, but, unless Company Limited and until the solicitor- and the Court or Court of Appeal, as the case may be, may make Kenyatta Nyirenda, J. (a) serves on every party to the cause or matter (not being a party in default of service as to acknowledgment ) a copy of the order, and (b) procures the order to be entered in the Registry, and (c)leaves at the Registry by him a copy of the order and a certificate signed that the order has been duly served as aforesaid, subject to the foregoing he shall, the party till the final conclusion Court of Appeal. provisions of this Order, of the cause or matter whether of in the High Court or be considered the solicitor (2)An application must, unless served an affidavit stating the grounds for an order under this rule must be made by summons which the Court or the Court of Appeal, on the party for whom the solicitor as the case may be, otherwise be directs, by acted. The application must be supported of the application. discharges The general client or herself, practitioner's retainer is, as a general the end: see Re Wingfield L. J, at page 684, stated rule is that a retainer or defend an action the legal practitioner, or the legal practitioner of either discharges party or a change in the l.egal or till death or incapacity to conduct himself continues till the firm, or till final conclusion rule, an entire contract of the cause or matter. to conduct or defend the action Further, such a to Cozens-Hardy & Blew [1904] 2 Ch. 655, CA, wherein terms: the point in the following "When once a good retainer clear, definite, something of the indivisible and precise is " effect of that retainer. has been given at the commencement to withdraw of an action, and to get rid that retainer required is subject to implied terms enabling notice, a retainer Of course, for good cause and upon reasonable withdraw withdraw the retainer for good cause where the client disbursements, properly conducting 440. at any time. For example, fails to provide is being burdened see Robins v. Goldingham to to a legal practitioner a reasonable and prevented in (1872) L. R 13 Eq. or the solicitor the action: sum of money for and (b) the client by the client may withdraw (a) a legal practitioner of the fact that Messrs Russell, Smith and Associates There is no notice on record had ceased to be legal practitioners practitioner practitioner Further, to a party in an action remains is good service: a legal practitioner for the Defendant. on record, see Lady de la Pole v. Dick (1885) 29 Ch. D. 301. service So long as a legal on that legal can only be discharged from liability to receive service Prime Insurance Company Limited Chrissy Vilili v. of proceedings the party in person. Once such substitution practitioner by the substitution on the record of another legal practitioner, or of legal is duly effected, the discharged Kenyatta Nyirenda, J. cannot be s�rved, nor can (1893) i Q. B. 149 he accept service; see R. v. Justices of Oxfordshire on record there is nothing s had adhered to the procedures In the present matter, Smith and Associate relation to discharge of a legal practitioner. For example, indication that Mis Messrs Russell, an order declaring evidence on record of such order being made by the Court. that they Smith and Associates applied to indicate there is neither an by summons for had ceased to act for the Defendant in this case nor laid out in 0. 67 of RSC in that Messrs Russell, by this Court in Mustafi Ali v. Prime Insurance Personal Injury Cause No. 741 of 2013 (unreported), As was observed Limited, practitioner has ceased who has acted for a party in a matter has not given notice of change of legal practitioner, or notice person, order declaring application must be made with the same zeal as when filing a notice of appointment of legal practitioner. so to act and the party to act in of intention to apply to the Court for an the party in the matter. Such an that he or she has ceased to act for on the legal practitioner it becomes incumbent Company where a legal Pronounced Malawi. in Court this 22nd day of May 2017 at Blantyre in the Republic of Kenyatta JUDGE Nyirenda 8