Felix v Chirwa and Other (Personal Injury 467 of 2016) [2017] MWHC 117 (30 May 2017)

JUDICIARY IN THE HIGH COURT OF MALAWI PERSONAL PRINCIPAL INJURY CAUSE NO. 467 OF 2016 REGISTRY BETWEEN: ELIZA FELIX { a minor suing Next friend Through ........... ETHEL FELIX) her mother and ............... ............. ......... ... PLAINTIFF -And- SAM CHIRWA ....................................... GENERAL ALLIANCE LIMITED ................................. .................................. ..... ............... 2ND DEFENDANT INSURANCE 1 ST DEFENDANT COMPANY CORAM: THE HON9URABLE CHIRWA MR JUSTICE of Counsel, Mr. Mwaungulu Counsel present Mr M. Manda, Official for the Defendants for the Plaintiff and the Defendants not Court Interpreter JUDGEMENT Endorsed, Specially By a Writ of Summons, June 2016, the Plaintiff Defendants amenities of life, (b) Kl 0, 346.00, being the costs of obtaining respectively, issued commenced this action against the and loss of (a) damages for pain and suffering special damages in the su ms of K3,000.00 and Report and (c) costs of this action. on the 22nd day of claiming the Police Report, Medical and the HIGH COURT .. LIBRARY ; ·--,. f It is the Plaintiff's case that on or about the 20th of April, 20 l 6, the l st Toyota Hilux Pick up, registration was driving motor vehicle, Defendant number KK3 l 90 from the direction towards Limbe on the Phalombe - Chiradzulu Road when at or near drove the said motor vehicle Chiradzulu he caused or permitted the same to hit her when she was crossing the road from the left to the right. The particulars of negligence have been provided Boma he so negligently of Milepa Trading Centre heading as follows:- that to keep any or any look out or to have any too fast under the circumstances; without due care and attention to other road ( a) (b) ( C) ( d) ( e) (f) (g) Driving Driving users; Failing sufficient Colliding Failing Veering off the road and hitting Failing control regard for pedestrians with the Plaintiff; to see the Plaintiff in sufficient time; the Plaintiff; to stop or in any other way so to manage or the said motor vehicle or to avoid the collision. in the said road; It is the Plaintiff's sustained injuries of the alleged injuries case further and has suffered loss and damage. The particulars and damage have been provided as follows: that by reason of the accident, she Particulars of Injuries: (a)fracture (b)painful lower limbs. of the tibia and fibula; Particulars of Special damage: (a)Mk 3,000.00, (b)Mk 10,346.00, cost of police report; cost of medical report. while admitting times the driver and the insurer that the 1st Defendant By their joint Defence dated the 30th day of June, 2016, the that the 1st and the 2nd Defendants Defendants, were of the said motor at all material was negligent deny the assertion vehicle, that the accident happened is the case of the Defendant contributed alleged negligence The particulars as follows: It wholly caused or to the said accident. that the Plaintiff have been provided and in the manner alleged by the Plaintiff. of the Plaintiff's Particulars: (a) Failing (b) Abruptly to keep or any proper look out; checking the road without entering if there were any approaching motor vehicles; (c) Playing (d) Generally on a busy road; and failing to observe traffic rules and regulations. The Defendants injuries, loss and damage, allegedly, joined issue with the Plaintiff on the by the Plaintiff. suffered have otherwise on its part contends of the owner of the motor vehicle The 2nd Defendant to indemnity the maximum liability between itself and the owner of the said motor vehicle. limit contained in the contract to insurance that its liability, if any, is limited herein to the extent of The Defendants have traverse otherwise words: in the following closed their defence with the general "9. Save as herein specifically den [y] each and every allegation Statement traversed in the of Claim as if the same were herein set forth and of fact contained seriatim," admitted, if at all, the Defendants And prayed that this action be dismissed in its entirety with costs. on the 9th day of March, 201 7 only and his Counsel were present. When this action was called for trial the Plaintiff Counsel did not appear nor did they proffer absence to this Court. This Court being satisfied Hearing had been duly served on the Defendants' proceeded the Rules of the Supreme Court. to hear the Plaintiff's The Defendants and their any excuse for their that the Notice of Legal Practitioners case in terms of Order 35 Rule 1 (2) of The Burden and Standard of proof: the affirmative non ei qui negat incumbit that the burden of proof in a civil action like the hence the probatio. This of proof in civil cases is merely action rests on the party who asserts This Court is mindful present latin maxim: ei qui affirmat that the standard Court is also mindful on a balance of probabilities. the accident the said motor vehicle, burden of proving the alleged negligence. other hand, having also alleged that the accident by or contributed burden of proving on the part of the Plaintiff. And the Plaintiff was caused by the 1st Defendant's as particularised, to by the negligence the alleged negligence having-alleged that driving negligent the primary on the The Defendants, or contributory of the Plaintiff was wholly caused thus shoulders also bear the of negligence Issues for Determination: ( l)Was the accident Defendant, as alleged? caused by the negligent of the l st driving (2) Did the Plaintiff suffer any injuries, loss or da mage, as alleged, as a result of the said negligence? Evidence: two witnesses, namely, (PW2). PWl adopted her written Pl, the Malawi Police exhibit Ethel Felix statement Report Abstract called To prove her case the Plaintiff (PWl) and Lydia Banda and went on to produce dated the 5th of May, 2016, and exhibit the 11th of June, 2016, as her evidence examined. in chief in this action. stated, this judgment action the Defendants PW2 also adopted her written She was also not cross examined. in of this did not appear at the trial As earlier and thus did not adduce any evidence to prove their case. P2, the Medical Report dated in chief. She was not cross statement as her evidence This Court will refer to the evidence the determination of the issues in this action. of the Plaintiff's two witnesses in The Law: The definition Waterworks generally regarded as classic:- of "negligence" by Anderson Co. ( 1856) 11 Ex. 781 at p 784, in the following B. in Blyth v Birmingham words, is "Negligence reasonable ordinarily regulate doing something not do". is the omission man, guided upon those considerations to do something which a which the conduct which a prudent of human affairs, would do; or and reasonable man would And this being an action and thE: Defendants to succeed i must prove the following: founded in negligence, for both the Plaintiff n their respective a llegations, they (a) That there was a duty of care owed by the one party to the other party, (b) That there was a breach of that duty by the other party; and (c) That damage resulted Donoghue v Stevenson from that breach of duty, -See [1932] A. C 562 quoted with v Ziligone and Another in the case of Kadawire approval [1997] 2 M. L. R 139 p 144. of a motor vehicle abound that "a driver The authorities of care to other road users not to cause damage to persons, See: Banda & and property Others & Kachingwe Company Limited the road". [1990] 13 M. L. R. 59 at 63 and Kachingwe of anyone on or adjoining & Company v Mangwiro v ADMARC & Another Transport owes a duty Motor ways vehicle 11 M. L. R. 362 at 367. On the duty of care which a driver owes to other road ·users Mtegha J (as he then was) in the case of Kachingwe Motor -Ways Company Kachingwe Limited words of Lord Mac Millan with approval v Young [1943] A. C. 92 at 104: & Company v Mngwiro of a motor vehicle in Hay or Bourhill the following Transport quoting (supra) & is to use proper "'What duty then was incumbent driver highway or in premises connotes avoidance traffic out, observing care not to cause injury adjoining the highway of excessive speed, keeping and so on .... rules and signals on the to persons care .... Proper a good look­ on him? ........ [T]he duty of a There is no absolute probable. a question It must depend on circumstances of degree,'" and and must always be of what is reasonable standard then, went on to say as follows:- "It is the duty of a person who drives a motor vehicle on a care to avoid causing damage to highway to use reasonable persons the road. It has been further ordinary circumstances and other vehicles stated that reasonable driver would have exercised skilful .... " care means care which an on or adjoining under all the Determination: Was the accident caused by the negligent Defendant? driving of the 1st of selling the happening of the is that uncontroverted, of PW2,the person who witnessed out her business Boma Trading 2016.whilst fried ground nuts before this Court, which remained that it was on or about the 20th of April, The evidence accident she recalls carrying Chiradzulu knocking Chiradzulu road at or near the zebra crossing. suddenly direction same road, hit one of the school children when they were about finish moving at a high speed, coming from the Centre heading towards Limbe on the to She rushed to see the victim and found that she was off from their classes, attempting road from the left hand side to the right hand side of the Centre when she saw school children, after to cross the Phalombe - a motor vehicle of Milepa Trading she was at or near As they started crossing. crossing the road, They took her to Chiradzulu District Hospital unconscious. she was referred to Queen Elizabeth Central Hospital. learn.ed that the victim's name was Eliza Felix. from where She later This evidence remained uncontrover foregoing evidence credible and probable. It is inclined the ted. After analysing evidence and the demeanour of PW2, this Court finds the to believe the same. From the authorities cited above, this Court would, in the premises, have no problems in finding that the 1st Defendant said motor vehicle at the material user. as another road Plaintiff as a driver of the time owed a duty of care to the time, this Court would be inclined a zebra crossing driving at the material In the absence of any evidence on the part of the Defendants bef ore this Court to contradict the evidence of PW2 on the manner of the 1st Defendant's had indeed breached his duty of care to find that the 1st Defendant was speed. Given that the 1st Defendant by driving at an excessive approaching and the fact that there were some school children crossing thereat, the 1st Defendant should thus not have driven at a speed which was excessive. Any reasonable driver would, in the circumstances, have driven at such a ·speed as would have allowed him to stop in good time or to swerve to the other side of the road so as to avoid hitting the Plaintiff. Defendant drove without due care and attention like the Plaintiff In other words, the 1st in this action. to other road users this Court is inclined to find that the Plaintiff In the circumstances, proved, on the balance of probabilities, negligent time. material has was that the 1st Defendant in manner of his driving of the said motor vehicle at the Did the Plaintiff suffer any damage as a result of the said negligence? of PW 1, which is partly corroborated of the said accident her daughter by the evidence sustained of the tibia and fibula Hospital District to Queen Elizabeth The evidence of PW2, is that as a result fracture to Chiradzulu referred She was admitted wound on the Plaintiff's leg was cast in plaster Plaintiff's and painful whilst Central Hospital for almost one month, during which period the the leg was being dressed. where she was treated. Thereafter, of paris for another month. lower limbs. She was taken unconscious from where she was evidence Again, the foregoing has no reason to disbelieve be disputed the premises, that she suffered that as a result it is the finding remained Further, PWl 's evidence herein. she suffered of the said fractures of this Court that the Plaintiff This Court uncontroverted. it cannot poi�. In has proved of the said accident. damage as a result having thus satisfied accident that the this Court on the balance of of the was caused by the negligence The Plaintiff probabilities 1st Defendant of the said accident. she suffered damage, this Court would thus proceed to find the 1st Defendant guilty judgment the 1st Defendant. this Court proceeds for the Plaintiff of negligence. In the premises, as a result and that toss enter a against have admitted in their defence that the 2nd this Court would, in the premises, was at the material And since the Defendants Defendant vehicle, judgment however, shall, 2nd Defendant Act. of the Road Traffic against the 2nd Defendant be limited time the insurer further also. The judgment as provided proceed to enter a against the for in Section of the said motor The judgment entered herein is for damages for pain and suffering and loss of amenities to assess these dama to reach an amicable settlement on the same. of life only. The Registrar ges in t of this Court is directed he event that the parties herein shall fail damages in the sums of K3,000.00 obtaining alleged to be the costs for "Pl") and the Medical Report (Exhibit As regards the claim for special and Kl 0,346.00 the (Exhibit same being claims for special damages ought to have been proved strictly Church v Trustees The Registered of African Church [1994] MLR 271 at p280. The Plaintiff alleged payments. dismissed. has failed to produce before this Court evidence for the They are be sustained. The same cannot therefore, - see: The Registered of African International Trustees the Police Report "P2"), respectively, Costs: of the Court (See Section follow the event (See Order 62 of The costs of an action are in the discretion 30 of the Courts Act) and normally the Rules of the Supreme Court and also the case of Matanda v Sales Services in her action against both the Defendants found no basis for depriving her of the costs of this action, this Court thus proceeds to exercise its discretion to the Plaintiff. [1990] 13 M. L. R 216 at 218. The Plaintiff on costs by awarding the same and since this Court has It is so ordered. Limited has succeeded 10