Kholomana & Anor. v Mtuwa & Anor. (Personal Injury 1077 of 2014) [2017] MWHC 60 (6 March 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 1077 OF 2014 BETWEEN JOSHUA KHOLOMANA . .......... .... . .................. .......... .... 1 sTPLAINTIFF FRANCIS KADANGWE ..... .............................. ........... ... 2N°PLAINTIFF -VS- MR. RODRICK MTUWA ...... ..................................... . 1 sT DEFENDANT PRIME INSURANCE COMPANY LTD .............. .......... 2 No DEFENDANT CORAM: HON. JUSTICE M. L KAMW AMBE Mr. I. Kalua Counsel for the Plaintiff Mi ss. khaki Counsel for the Defendant Mr. N. W. Phiri Official Interpreter Mrs. Chipapi Court Marshal Kamwambe J JUDGMENT On 7 th day o f January, 2013 the plaintiffs were invo lved in a n accident being passengers in motor vehicle registratio n number BN 67 26 Toyota Hiace Minibus whic h hit a truck registratio n number TO 5 188/ TO 5407 F /Liner. The l st Plaintiff sustained a fracture of the Tibia and Fibula o n the right leg and right femur. The 2 nd Plaintiff sustained cut wound o n his fac e rig ht ear, and painful right ribs, mu ltiple soft tissue injuries. The plain tiffs a re now jointly claiming da mages for pain and suffering, special d a m ages, costs of obtaining medical and police reports and costs of th is action . At the o utse t, the c o urt remind s itself tha t this being a civil proceeding, th e re quired sta ndard o f proof is on a balance of probabilities (See Constantine Line vs. Imp erial Smelting Corporation (1943) AC 154, 174). It is a lesser standard than that required in criminal proceedings w hic h is beyon d a reaso nable doubt. The court also bears in mind tha t as a g e neral rule o n eviden tial burd en of proof, it is the party tha t alleges the existen c e of certain fa cts on who the burden of proof res ts. The co urt heard evidence fro m two w itnesses, that is, only on the plainti ff's side . The l st plaintiff is [PW l] an d the 2nd Plaintiff is [PW2]. The main issue to b e d e termined in this matter is whether or not the accident was caus e d wholly b y the neg ligence of the l st Defendant. Other issues to b e determined are whether the l st Defendant owed the Pl a intiffs a duty of care, w hether the 2 nd Defendant is liable as an in su re r an d whethe r the damages are payable. Negligence is the b re a c h o f duty to take ca re by a person which results in damage b eing suffered by another p erson o r p roperty. The position of the law is that it is the duty of every person who drives a vehicl e on the hig hwa y to use reasonable care to avoid causing injury to perso ns, ve hicl es or property o f any kind on or adjoining the hig hway (se e Charlesworth on Negligence 5th Edition page 488 par 812). The d uty of care expected of a driver is reasonable care which a c ompeten t driv er would use in the c ircumstances and there is a litany of case au thority on this proposition, among them [Mponda v Air M a lawi and Another [199 7] MLR 131] . Such a driver is expected to avoid excessive speed , keep a good outlook and observe traffic signs and sig nals (see Dilla v Ragan) 12 MLR 358. Whether or not the d river of the vehicle was negligent would depend on whi ch version b e tween that of the plaintiff and that of the defendant the court would believe regardi ng how the accident occurred . As the saying goes, it is a c ase of the story of one person against that of the other. Th e co urt is therefore enjoined to carefully weigh and exa mine the evidence befo re it in ord e r to come to a position as to w hat must ha ve p o ssibly happened , of course, bearing in mind the law on the burd en and stan dard of proof a s stated earlier. In his testimony the l st p laintiff [PW l] adopted a police report marked Ex Pl a nd a medical re p ort marked Ex P2 a s evidence before this court . The l st plaintiff furt he r testified that the a c cident occurred around 7pm, it was dark and showerin g. He stated tha t he was sitting in the front sea t of the moto r vehicle which is usually used by the conductors, an d he was ab le to see the speedo mete r and could tell that the vehicle was traveling fa st . He w as howeve r unable to see the gauge. He told the court tha t he had b oarded the bus in Limbe and the accident o cc urred a t Ma ndolo in C higumula . He was facing the road and was able to see th e ro ad clearly and c oul d see the truck registration number TO 5188/ TO 5407 in front of them . He also stated that the passe ngers in the minibus had warned th e 1st Defendant about the spee d and not to follow the truck very closely, to which the 1st Defendant responded by tel ling the passengers to drive the vehicle themselves. PWl further stated that he thought the driver wanted to overtake the truc k, and the truck had indicated that it was turning left to Mandolo Truck yard. Upon the truck slowing d own to turn the 1st defendant faile d to control the minibus and ended up hitting the truck on the trailer si de on the left. In re-examination PWl explained that he had warned th e driver that the truck was going to turn at Mandolo, as he was aware that that was a place where trucks are kept. However when he warned th e driver the driver respo nded that as he was a driver he knew what he was doing. PW2 was shown the police and medical re p orts in examination in-chief which he adopted, again it should be noted that this court does not put m uch weight on these documents a s they the authors did not testify, as such they are admissible hearsay evidence before this court only to the level that they were made . In c ross-examination PW2 stated that he sat at the back of the said v e hicl e and that there were showers a nd a fog at the time. He furthe r sta ted that he could see the truck in front but he was not able to se e the registration number of the truc k, but he cou ld see the signals of the truck. There was no re-exam ination . The allega tions of PWl and PW2 only contradict on the part where PWl states tha t he saw that the truck indic ate that it was turning and PW2 sta tes that he had not seen the indicators . This could however be the case considering that the p laintiffs sat on different seats in the sa id vehicle and PW2 having sat at the back could not have had a cl ear vision of the front as did PWl. As su ch this court will rely mostly on the evidence of the PWl who had a cl ear vision as he was sitting in front. There has not been any dispute to the a llegations of PWl and PW2 as the defence did not bring any witnesses. Th ere was also no defence that was filed on the part of the 1 st Defen dant. The only defence that was filed was the defence of the 2nd Defendant. Counsel for th e 2nd Defendant only cross examined the plaintiffs witnesses but never called any witnesses for the 2n d Defendant. PWl alleged that he was able to see the speedometer and could tell that the driver was traveling fast at the speed of 80Kph . This evidence has not been disputed by the defence. As matter of fact the 1st Defen dant did not even provide any defence in this circumstance the court will use Order 19 rule 7 ( 1) of the Rules of the Supreme Court for the 1st Defendant, which states ; " where the plaintiff makes against the Defendant or Defendants a claim of a description no t m entioned in rule 2 to 5 then if the Defendant .. . .fails or fail to serve a defence on th e plaintiff, the plaintiff may after the expiration of a period fixed by or under these rules for service of the defence apply to the court for judgme nt and on the hearin g o f the application the court shall give such judg m e nt as the plaintiff appears entitled to the statement of c laim " There has b e en no defence filed by the 1st Defe ndant, however the Plaintiffs have not fil ed a n app lication to that rega rd and th e court cannot argue th e 1st Defen d ant's case . In th at regard we wi ll use the saying that let sleeping dogs lie . The court will further consider what Lord Alderso n had to sa y in the case of Blyth vs. Birmingh a m Water Works Compan y (1856) Ex. 781 at 784. 11 Negligence is the omission to d o somethin g which a re a so nable m an guided upo n those considerations w hic h ordin a rily regulate the conduct of h um a n affairs w ould do o r doing someth in g whic h a prudent a nd reaso nable man wound not do ." It is in evid ence and it ha s not bee n disputed that the minibus hit the truck on the left si de a t the bac k. Whether o r not the truck indicated that it w a s g o in g to turn will not change the fact that the driver of the mini-bus ought to have used p rope r ca re of a reasonable man and kept a dista nc e between the minibus a nd the truck reasonable en ough to a llow him to either stop or slow down and avoid hitting th e truck in fro nt o f him in any circumstance. Failure on the part of the l st Defendant to stop or slow down to avoid hitting the truck shows negligence on his part, as he ought to have kept proper look out as he had seen the truck in front of him. Since th e l st Defendant did not file any defence the court will consider the law in section 65 A Road Traffic Act (Ca p 69:01) laws of Malawi which g ives a right to the injured party to proceed agains t the insurer. Any p erson having a claim against a person insured in resp ect of any liability in regard to which a policy of insurance hos been issued .... Sholl be en titled 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. This court believes in the evidence presented b y the plaintiffs. It 1s clear that th e accident did happen the way the plaintiffs are alleging. Unless the contrary can be proven, as suc h the plaintiff's evidence has b een put into much consideration . The accid ent occurred along the Limbe-Bvumbwe road during the night and while it was showering , despite the time and the weather conditions the l st Defendant was speeding . The court is of the view that the l st Defendant ought not to have b een speeding. After noticing a truck in front of him, the 1 st Defendant was entitled to keep a distance that would have enabled him to slow down or to stop should the truc k decide to turn. The truck is said to have been turning to the left and it has also been indicated that the Mini-bus hit the truck on the left side. This shows that the mini-bus had not even started to overtake the truck. If the mini- bus was overta king the truck the process of overtaking wou ld have been done on the right side of the truck, as is normal where motor vehicles overtake the cars in front of them that take a left turn. In such a scenario th e truck would have been hit by the minibus on its right side. This then tel ls us that the 1st Defendant just hit the truck and he· was not in the process of overtaking but rather he failed to stop or to slowdown when the truck was turning as he had not kept a good distance b e tween himself and the truck. In view of what has been stated above, this c ase succeeds with costs. Pronounced in open court this 6th day o f Marc h, 2017 . L. Kamwambe JUDGE After noticing a truck in front of him, the 1 st Defendant was entitled to keep a distance that would have enabled him to slow down or to stop should the truc k decide to turn. The truck is said to have been turning to the left and it has also been indicated that the Mini-bus hit the truck on the left side. This shows that the mini-bus had not even started to overtake the truck. If the mini- bus was overta king the truck the process of overtaking wou ld have been done on the right side of the truck, as is normal where motor vehicles overtake the cars in front of them that take a left turn. In such a scenario th e truck would have been hit by the minibus on its right side. This then tel ls us that the 1st Defendant just hit the truck and he· was not in the process of overtaking but rather he failed to stop or to slowdown when the truck was turning as he had not kept a good distance b e tween himself and the truck. In view of what has been stated above, this c ase succeeds with costs. Pronounced in open court this 6th day o f Marc h, 2017 . L. Kamwambe JUDGE 8