Moyo v Mkandawire and 1 other (Civil Cause 188 of 2015) [2017] MWHCCiv 22 (5 April 2017)

REPUBLIC OF MALAWI MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 188 OF 2015 BETWEEN DYSON MOYO….………….………...................................... PLAINTIFF -and- DVR/CONST SAVE MKANDAWIRE…………………….. 1ST DEFENDANT REUNION INSURANCE COMPANY………………………… 2ND DEFENDANT Coram : Honorable Mr. Justice D. T. K. Madise Mr. C. Chithope Mwale Counsel for the Plaintiff Mr. E. Mbotwa Counsel for the Defendants Mr. A. Kanyinji Official Interpreter Madise, J JUDGMENT 1.0 Introduction 1.1 The Plaintiff commenced these proceedings by way of a writ of summons against the Defendants on 3rd July 2015 seeking damages for negligence. The details are particularized in the statement of claim. The Defendants denied the allegations. 2.0 The Facts 2.1 The particulars disclose that the Plaintiff owns a motor vehicle Registration No. ZA 8262 Toyota Sprinter saloon. On or about 11 May 2015 his authorized driver Josephy Tembo was driving the said vehicle from the direction of Kaning’ina heading towards Mzuzu MBC office. Upon arrival at a certain curve, he was hit by a Toyota Land cruiser Registration No. MP 2007 which was driven by DVR/Const Save Mkandawire the 1st Defendant herein. It is alleged the said Save Mkandawire hit the other vehicle due to negligence. The plaintiff’s vehicle was badly damaged and the cost of repairs amounted to K2, 185,540.00. 2.2 The Plaintiff further claims damages for the inconvenience suffered due to the loss of use of the vehicle. A police report has been tendered which apportions blame on the 1st Defendant. The 2nd Defendant has been dragged into this matter as an insurer of the 1st Defendant’s vehicle. 2.3 The 2nd Defendant admits that the vehicle the 1st Defendant was driving was insured by them but they denied that the 1st Defendant was negligent and called the Plaintiff to strict proof. 3.0 The Issues There are basically four issues for determination before this Court. 1) Whether the 1st Defendant was negligent 2) Whether the 1st Defendant owed the Plaintiff a duty of care 3) Whether the 2nd Defendant is liable as an insurer 4) Whether the damages are payable. 4.0 The Law. 4.1 Burden and standard of proof It is trite law that in civil actions like the one before me, the burden of proof rests upon the one alleging or asserting the claim and/or want the court to believe that a particular fact exist i.e. the burden of proof is upon the party who would fail if no evidence at all is adduced on which he bases his claim. 4.1.2 The standard of proof is on a balance of probabilities. In simple language he who asserts a matter or fact must prove but he who denies need not prove. If the claimant is to succeed the court must think his story to be more probable than not. If however the probabilities are equal the claim must fail. 4.2 What is negligence? 4.2.1 Lord Alderson, gave perhaps the best description of the definition of negligence in the case of Blyth vs. Birmingham Water Works Company (1856) Ex. 781 at 784. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinary regulate the conduct of human affairs would do or doing something which a prudent and reasonable man wound not do. 4.2.2 Negligence as a tort has four requirements namely: 1. The existence in law of a duty of care which the law attaches liability to carelessness. 2. Breach of the duty of care by the defendant. 3. A casual connection between the defendant’s careless conduct and the damage. 4. That the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote. Once this is established the next question is to consider whether the defendant is liable in damages and for how much. 4.2.3 Looking at the evidence before us, can it be said that the 1st Defendant was negligent? Did he owe the plaintiff a duty of care? Can it be said that the 1st Defendant breached that duty of care? Lastly can it be said that as a result of that breach the Plaintiff suffered loss or damage? Lastly are damages payable in this matter? 5.0 The Finding 5.1 The plaintiff tendered his witness statement. He further tendered an Abstract Police report. The report opined that according to the investigations and the evidence gathered at the scene and statements obtained from witnesses the accident was caused by the negligent driving of the 1st Defendant. The driver was going to be charged with inconsiderate driving. 5.2 The defence has led evidence in rebuttal and has challenged that it was the plaintiff’s driver who was negligent and they have challenged the Police report. 5.3 The law demands of us to take reasonable care to avoid acts or omissions which we can reasonably foresee would be likely to injure our neighbor. Guidance in this matter has been sought from Lord Atkins LJ when he decided Donoghue vs. Stevenson (1932) AL 562. Who then in law is my neighbor? Neighbors are people who are so closely and directly affected by any act that I ought reasonably to have them in contemplation as being so affected when I’m directing my mind to the acts or omission which are called in question 5.4 The plaintiff was driving his vehicle on the material day. He was perfectly entitled to be there. At or near Mzuzu MBC offices a Police vehicle was coming from the other direction and at a curse he was hit by that incoming vehicle. The Traffic Police found that the 1st Defendant was at fault as he was over speeding. They were going to charge him with an offence. 5.5 What further evidence do I need? Things in life do not just happen. There is always a causative effect. I’m seriously worried why Counsel decided to defend this matter. Was Counsel chancing with this Court? The facts are very clear that the 1st Defendant was driving the police Land cruiser Registration No. MP 2007. He drove the said vehicle negligently that he caused an accident at or near MBC office in Mzuzu. 5.6 The traffic police visited the scene and arrived at a conclusion that their own colleague was at fault. They did not back him up. They wanted the truth to prevail. Surely the truth must prevail. 5.7 Liability of Insurer The law in section 65 A Road Traffic Act (Cap 69:01) laws of Malawi gives a right to the injured party to proceed against the insurer. Any person having a claim against a person insured in respect of any liaBility in regard to which a policy of insurance has been issued…. Shall be entitled in his own name to recover directly from the insurer any amount not exceeding the amount covered by the policy for which the person insured is liable to the person having the claim. 5.8 Therefore a plaintiff claiming directly against an insurer has a good claim notwithstanding any condition in a policy which purports to restrict the insurance of the person insured. The 2nd Defendant has not asked the Plaintiff to prove that the motor vehicle in question was insured by them. There has been tendered before this Court an Abstract Police report which clearly indicates that the motor vehicle which caused the accident was insured by the 2nd defendant. 5.9 The plaintiff in my view has satisfied this Court on a balance of probabilities and he must carry the day in this Court. I therefore find in favor of the Plaintiff in this matter. 5.10 Damages The assessment of specific damage as a particular head must be specifically pleaded. Although general damage is presumed by law to flow from the wrong complained of, it must still be averred and the court must be satisfied that such damage has been suffered. 5.10.1 Special damages must be specifically pleaded in order to warn the other party so that they are not ambushed at trial, since they are over and above those that would reasonably be expected to flow from the claimant’s loss. I therefore order that the Plaintiff in this matter should be awarded damages in the following terms: 1) Damages for loss of use. 2) Damages for inconvenience 3) Refund of cost of repairs and police report. The Plaintiff must file summons for assessment of damages before the Hon. Registrar within 14 days. This action must succeed. 6.0 Costs Award of costs is the exclusive preserve of the Court. I condemn the Defendants in costs. Pronounced in open Court at Mzuzu in the Republic this 5th day of April 2017. Dingiswayo Madise JUDGE 8