Mtalimanja v Blantyre and Packaging Company Limited (Civil Cause 2156 of 2000) [2003] MWHC 120 (21 November 2003)

IN THE HIGH COURT OF MALAWI / ale? y zg — PRINCIPAL REGISTRY 8 Ba . _ CIVIL CAUSE NO. 2156 OF 2000 | BETWEEN: ELIZABETH MTALIMANIA..icccssssssssssssssssssssssssecsssssssesssssssscesssssesesssseccsssseecesssssesssnees PLAINTIFF VERSUS BLANTYRE PRINT AND PACKAGING ....csssssssssssssssssssssesessssssessssssecsssseecssssesesen DEFENDANT COMPANY LIMITED ; | tee CORAM: TWEA, J C. Mhango, of Counsel for the Plaintiff Benard Mhango, of Counsel for the Defendant M. C. Chaika(Mrs), Recording Officer hag 1p” JUDGMENT The plaintiff in this case brought this action claiming damages for personal injuries. It was her claim that on 15th July, 1999 while she was crossing the Chipembere Highway at Christweek in the City of Blantyre the driver of the defendant riding a motor cycle Registration Number BJ 693, so negligently managed it that he collided into her. She sustained injuries: a fractured right arm, multiple bruises and severe chest pains. As a result thereof she has suffered 22% permanent incapacity. She now claims damages for pain and suffering, loss of amenities and costs for this action. The defendant by their defence denied that their servant negligently managed the said motor cycle. Further, they pleaded in the alternative that the plaintiff was guilty of contributory negligence. At the trial, the plaintiff gave evidence but did not call any other witness. The defendant called their servant who was riding the motor cycle at the material time. The evidence of the plaintiff was that she was walking along Chipembere Highway towards Blantyre when she decided to cross to the left hand side of the road. She checked the traffic and noted that there was no traffic towards Limbe, however, there was a motor cycle followed by motor vehicles coming towards Blantyre. It was her evidence that these were about 90-100 metres away. She decided that it was safe to cross the road and she did. She told thus Court that she realised as she was about to finish crossing the road that she had been hit by the motor cycle. She was hit on the arm and she fell on the left hand side of the road on to the dirty verge. The motor cycle that hit her fell on the right hand side. She told this Court that she took note of the oncoming vehicles and 2 felt it was safe for her to cross. She also told this Court that she sustained injuries and was taken to Queen Elizabeth Central Hospital. She had a broken right arm. She was put in plaster of paris and hospitalised for five days before she was voluntarily discharged. The defendant’s evidence led by their servant was that he was riding the motor cycle in issue towards Blantyre at a speed of about 30-40 kilometres per hour. He noted that there was a stationery mini-bus on the left hand which took up a lot of space. It was also his evidence that there was a vehicle in front of him and also a vehicle that was behind the mini-bus travelling Limbe wards. These two vehicles both passed the stationery mini-bus, before he got to the point where the mini- bus was. It was his evidence that he did not show down as he approached the stationery minibus, and that he was riding close to the crown of the road. It was his evidence that he saw the plaintiff emerge from behind the mini-bus at a very short distance and failed to avoid her. He collided into her, she fell on the left side while his motor cycle fell on the right side. It was his evidence that the plaintiff was not injured, but that he escorted her to the hospital because she fell down. This in essence was the evidence. In her submission the plaintiff prayed that this Court should disregard the evidence concerning the mini-bus, from where she emerged because this was not pleaded. I did mention that the defendant pleaded contributory negligency on the part of the plaintiff. The particulars of the negligency were as follows:- “(i) crossing the road without taking due regard to other road users; (ii) crossing the road without checking whether it was safe for her so to do; ES (iii) crossing the road without taking heed of the presence of the defendant’s motor cycle on the said road.” The plaintiff submitted that the purpose of pleading is: “To bring the parties to an issue or issues on which allow the Court can adjudicate between them. But it is also designed to fulfil some of the fundamental principles of natural justice such as that each party should have fair and due notice of what case he has to meet that each party should have reasonable opportunity of answering the claim or defence of his opponent and that each party should have a reasonable opportunity of preparing and presenting his case on the basis of the issues disclosed in the pleadings and no other. On this basis the fundamental right of each party to a fair trial is well founded.” Bullen and Leak and Jacob’s Precedents of Pleadings: 12th Ed. at 67. Could the particulars of negligence pleaded by the defendant be said to be sufficient to bring to the notice of the plaintiff that she emerged from behind a stationery mini-bus without looking out for the on coming traffic? In my view this answer is no, not even by necessary imputation or implication. The issue of there having been a stationery mini-bus was first raised during the cross-examination of the plaintiff in open Court. The defendant did not put to the plaintiff the issue of there being a stationery mini-bus and where it had stopped when she gave evidence at the scene. It is also necessary to mention that the issue of there having been a vehicle in front of the motor cycle and behind the stationery mini- bus was not raised in the cross-examination of the plaintiff at all. It is my view that this evidence must be excluded. 3 At the end of it all, I note that the defence relied on the excluded evidence to prove contributory negligence on the part of the plaintiff. There is no other evidence to show that she had contributed to the accident. To add to this, I wish to state that the defendant in its evidence admitted that DW1 did not know where the woman (plaintiff) was and that he did not see her. In view of this no reasonable tribunal would impute contributory negligence to the plaintiff. Both parties agreed that the defendant’s driver owes a duty to take care on the road and cited an abundance of cases to support this among them Zaina Chipala v Dwangwa Sugar Corporation Civil Cause No. 435 of 1998 (unreported) at 10, Zindana v Professor Chimphamba Civil Cause No. 440 of 1987 (unreported) and Lameck Kachaso v Punch Construction Equipment Suppliers Company Limited and Rex Vinyo Civil Cause No. 288 of 1984 (unreported). In the present case, I find that the defendant driver, DW1, did breach his duty toward the plaintiff when he collided into her. The defendant’s evidence was that the plaintiff did not suffer any injury. It is curious however, that he admit that he took her to the hospital then he himself proceeded to report the accident at Blantyre Police Station. I find DW1's evidence on this hard to believe. It is my finding that he was aware that the plaintiff was injured that is why he took and left her at the hospital. It is my finding therefore that the breach of duty resulted in damage and injury suffered by the plaintiff. Having regard to the case of Ignzio Ngirazi v M. M. Chimbende t/a Tithokoze Transport Civil Cause No. 125 of 1982 (unreported) I find the defendant liable for the negligency of their driver DW1 and I find this case for the plaintiff. I remit the file to the Registrar for assessment of damages. The defendant is to bear costs for this action. Pronounced in Open Court this 21st day of November, 2003 at Blantyre. EB: Twea JUDGE