Mwenechanya v Attorney General (Civil Cause 206 of 1979) [1980] MWHC 22 (9 January 1980)

‘ f fos t 4, oy ! ? Ay ms, Ik THS HIGH COUET OF waALa TAT FLANTYFE Ly. oO Ns, s re > “tl a) CIVIL CAUSE No. 206 of 1979 Ne, ry % N BETWEEN: —— Jot MWETECHAPYA aS OS a 6 ie oe, Bee PLAILTIFEF and ATTORNEY GENERAL Bird BB, HOS ee 6 He wale DLSFENDAT Coram: Jahh, Ag. CeJ. Mhargo of ULounsel for the Plaintiif Yunlo of Counsel for the lefencort Mpalika: Cfficial Interpreter Caffynz Court Feporter In this action the plaintiff sues the Attorney General by virtue of section 3(1) of the¥ivil Procedure (Suits by or agairst Government or Public Officers) Act, Cap. 6:01. The plaintiff was at all material times an Agricultural Officer working for the nercnga levelopment Project (hereafter referred to as K. I. P.). His main duties were to advise farmers covered in the above project. In the course of his field work K.1. F. hired for his use vehicles from Flat & Vehicle Hire Orgenisatior (P. V. H. C). “P. V. H. O. would provide a criver to taxe the plaintiff wherever he was recuire¢c to perform his professional services. The plaintiff claims against the defencsrt camages arising cut of an allegec negligert driving by the dofercart of motor vehicle M3 6665 causing the overturning of the saic vehicle, whereby the plaintiff suffered a large laceratsc wound across the irnor palm of the left hanc and also fractures of the finzers. The cefencant cenies negligence and avers that the overturning of the vehicle was caused by accident which was inevitable. I remind myself alcut the burden of proof in civil cases. Or the 12th of January 1976 the plairtiff and the Assistant Tistrict Commissicner Karorga were trevellir? from Karorza to Lupembe in MG 5868 driven by one Cscar Mwaungulu, a distarce of 12 miles. The time was around 4 poem. The trree of them sat ir the cab of the vehicle, this was a Lendrover picx-up. The driver, Cscar Mwaungulu, was familiar with the road: he was born and bree in this area. It is the cvidence of the complainant that the driver was travelling at a fast speec, he said thet from karonga Boma to a grocery shop he wag doirg 50 m.p.h. and after a short stop-over he was bacw to 50 mp-h. It is to be observed that there is ro /speed we Dice speec limit on this particular road. Eowever the speed limit on our roads is 50 mepeh. It is ~erhaps helpful to digress a little - The road takes a gentle bend as almost to be unnoticeakle, there is a harrow bricgc anc ecross the bridge thare are cattle structures where h-rdsboys ere allowed to cross the animals from one siée of the road to the other, after cattle structures there is a model full primary school. These features of ths road are well-krowr. to Loth the driver of the vehicle and the complsirant. The other krown factor in this case is the seneral habit of cattle in this erea; the animals come down from hills and go corm to the lake to drink water during the afterroon hours. In so doing the animals do rot move ir an orderly fashion, they scatter over the plece. Having digressed a little, 1 return to the eviderce of th. compleinant, he saic the criver recucec his spced while crossing the bridge to 30 mepeh, at the time he saw a large bere of cattle scatt:rec all over the official gate. The driver picked up spsed to 45 mpeh. fhe ¢river hooted and he saw a young boy going from the East to ths “est, the big herdsman was still or the road, the driver wanted to filter through the animals, the driver did rot reduce his speec, a second tcy came agair. from fast to “est following the other boy, the ceriver then brakec, as a result the vehicle overturned, Ths complainant broke his left palm, he was bleecing profusely. A Landrovez: came from the opposite direction and they were all rushed to Karonga Iistrict Hospital. The complainant identifiee the sketch plen enc tole the court that he had drawn it. He elaborsted the featurzs or the plan. He explained that the cattls structures were not completed, they were not yet wire- fercec although poles were there. Ac the sxarorga Tistrict Hospital the complairant was operated upon, ho iss later sent to Fumphi Llistrict Hospital and finally to Kamuze Certral Hospital, Lilongwe. Ne produdec a msdical report and all the expcrses he has incurrec as a Tesult of this accicent. The total expenses esccorcing to the complainant are K155;80t. He claims this amount as special damages. It is not cisputec that Karonen hes a high cersity cattle population. The ~tlaintiff reiterated i: cross-examination what he told the court ir examination-irehiof; he acded that the school wes ir session and the children were out playing in the school grounds. It was his svicerce ir cross-examinatior thut re sew a boy shoutins with a stick commandines the animals. Th<« witness's attentior was Girectec to Uxhibit 2 and he was askz¢ to Police. He egreec. He Was askoc containec in $xbibit 3: he saiec that correct. He was further shown @xhibit 3 end he agreec that it ©>s correct. Fe tried to explain away the impact of @xhibits 2 -né 3 in re-examiration; he Sssic that he zave the statement ir rusponss to questiors by the Tolice Officer recordirg it. He saic. ba vas esked to pass judgment as to who was to tlame. So he thought the chilé was to blame. The seconé witness was Tr. George Kayombo, a Senicr Surgical Specialist working for Kamuzu Certral Hospital, Lilongwe, he recognised the plaintiff «s onc of his patients. No bec come as a referred patient frem Karornga Hospital ir 1978; he examircd the pakient arc he acquaintec himself with the case history, he decicuc tc operate on him. He describec the injuries as follows:- thether he mads the statement nether he wrote the statemant / "Be "He hac ole open irfected injurics to his left hand, My Ciagnosis wis a dsep cut wound to the lsft hand with multiple fractures of the proximal phalanx of the index finger and laxation of the metatarsal joint. The thumb and micdle finger were also involved and he hac osteomyelitis of the bene, resulting in a claw hard, com,letely formed due to stiffness enc contracture. Anothor big problem was that he had injuries to the nerves on tho midéle ard right hand sice of the fingers. Thess were the biggest problem because you canrot suture them. the nerve is an organ which is the most specialisec ir the human bocy. If it is cut it does not function anc there is rothing ‘ov can do ebovt it." The coctor's evidence supports the plaintiff's story ir so far as the irjuries are concerned anc the cisrbility resulting from the injuries. The evidence of Mr. Thinéy=, the Medicsl Cfficer at anarongsa, Geals with the treatment given by him tc the complair-art immediately ».fter the accident. It cocsrot add anything new to the aetsiled evicence by Lr. Kayambo. The next evidence is that of Mr. Chiumya, he was an assistant District Commissioner at Karonga at sli m-terial times. He is now the Tistrict Commissioner. Ir examineticr-ir-chief, he tclc the court that on the 12th July 1975 he accompenied the complairart in a Government Landrever erd the criver was lr. Mwaunculu, they left at 4 p.m. He told the ccurt that the vehiclé was travellirns at 45-50 Mspeh., he Cescribed the physical fertures at the scene of the accident: his descripticn is substantially the s me -s that cf the complairant It was his evicence that as the vehicle in which they were travellir > reachec the bricge the ¢river reduced tse speed, he ther picked up speec clocking 50-60 map.h, there were cattle and the Griver hootec, the herdsmer st-rtec clearing the roné anc before the vehicle firished paising the animals he saw a boy rurring irom Bast to West; the driver continued driving at 50-60 m.p.h. speec, arother bey started runnirg trying to follow the other tcy. The criver tried to brake but the car overturned on the left sice anc there wos an accident. He said Mr. Mwerechany> had a broken arm anc was Lleeding. In cross-examiration he wes asked ~s to whether he had madc - statement to Pclice after the accicent. He -greec thet he hac done sc. Fis statement is contained in IX e. The material part reacs ag follows:- "As we crossed Phapa Bricge we 2pproached a herd of cattle split into two grcups cne or sithor sice of the road. The criver of the vehicle cr which we were travellirg, Lardrever MG 60666, slowed Gown, ors toy aged atcut 5 years crossecé the road from Bast tc West. Ther (rom emcngst the cattle aroth.or bey sprung inte the road from nowhere et full speec, the criver crammed on the brakes to aveic hittins the boy. The Landrover swung to the right ane restec on its left sice, the boy ec abcut 4 years leapec and fell or termee thus sustaining he. c. injuries. Mr. Mwerechanya hac his left hand cut and he blescod heavily..." He triec to explain away this statement by gayirg thet it was cbktainedc from him by m3ers of questio:irg. Hs furth r said that wh t he told the court agries with the st-tement cuctcc above. He saic there was ro Cciserepancy in his view. He theucht the ceuse of the accident was the sucdcen braking ty the driver. In re-examineticrn he reiterated his 2arlicr vorsicn that the Criver pickec up spsec aftor crossirg the bricge. /The -4- The next witness wes Wr. M-tupe = Senior Txamirer of vehicles. It was his evidence that a zcod driver ovght to slow cown wher: approaching a nerrew bricge ard look for the unexpected. He was shown Uxhibit 1, he recognised the place as “cattle restrictiors”. Fe was shown skic marks and after calculsticns he saic the criver was travellireg at rot more than 40 m.ep.h. The evicence of the driver is that as the vehicle approached Phapa bricge he slowed cown near the bridge, there is a fence and path where cattle cross. There were cattle con sither side of the roac , ho =zain slowec down. In front cf him there wore two chilcren, thay were cr either side of the road. It wos his evicerce thet he was travellir 7 at 25-30 m.p.h., he brakec te avoid hitting a chile who crossec the reac succenly, the chalc passec anc the car swervec and it overtprnec cnce cnly. He ceriec that he was coing £0 m.p.h. Fe saic tic animels were a bit far from the road. He saic Mr. Mwerechanya injurec. He saic there were no school-chilcren, After the accicent the three of them were taker tc the hospital by the Chinese. em In cross-oxaminaticn he told the ccvrt that he snows the area well anc he rurther knows that cattle terc to wencer anc that the arimals co not use the cattle crcossin.s which ere constructec there. He tole the court that the animals come frem the hills and gc cown tc the lake te Crink water. He further to:¢ the ccurt that he has travellec on this roac many, many times. Fe further saic he was aware that large herds cf cattle are leokec efter by Lig hercsmen. He saic small chilcren ce ret leck after cattle. It was his evidence that he cees not crive fast. He said on that particular date he slowed cowr. anc there was no need to hect because the animals were grezing and the reac was clear. He explair.ed how the accicent happened. We denied that the cattle were inside the road. The next cefence witness was Constoble Mithi. He saic he came cn the scere of the accident and saw - motcr vehicle ¥4 8866 restine an the miccle of the reac. Fe mace enquiries anc later cn treffic Constsoble Poya came to take messurements. Fe also describec the physical features of the scene of the accicent. He saic he ccntinuec with his journey anc next morning recercec an ercirnary statement from hr. Mwenechanya, this was PX 1. He Cenicce Ciscussing anything with Mr. Mwenechany.. He handec it to T. G. Feyne He admitted thot he got the statcment by asking cuesticrs. re further tel¢c the court that he wrote the statemert boceauss Mr. Fwerechanya was in bed. Traffic Corstable Peya gave evirerce, hé saic be had a report anc wert to the scene of the accicent -cccmpaniec by T. C. Mithi. He drew a sketch ;len, he returned te K-rcnga Foma anc irterrogeted Criver Mwaungulu. He sent tc Yr. Chiumya anc gave him ea paper ane askec him to reccerc a statement and he temcoreé it in evicence 2s Bxhibit IX 2. After stucying both Vr. Fwernechanya's statement -s well as th t of Mr. Chiumya he dic ret firc it recessary tc institute legal procesdings;: by this he means crimins1l rrecoccirgs. He tele the court that the weather wos fire and it was e bright cay. yn 1 have reccunted the evidence in brief both for the plaintiff anc the cefendart. I reminc mysalf -< cut the burder of preef ir civil cases. The plaintiff hes to satisfy sco cn the balance cf probebilitics enly. The Geterce ir this case admits thet the accicent tock place -s allegec in the statement of claim anc furthor .dmits that Mr. Mwaungulu was criving the vehicle ir the courses cf his employment arc that at that he was an employee of the cefendart,. further it is scmitted that the /plaintiff -5- plaintiff suffered injurics. Wh-t is strenucusly deried in thet the cefené-nt was nezligent onc therefore liable. Peracragh 5 cf the statement cf claim alleges:- 5. At the same time 2st Fhapa Bricge alonz aaronga/ Ch vilumbn beac, the saic servant cr Agent by reascn cf the Bee ice on bis part in driving, meraging ane controlling of the said venicle, caused or pirmittsac the same tc cverturnr. PARTICULAFS CP FEGLIGVENCS a) Driving at tec fi-st ir the circumstances b) Failing to kcep any or any preper lcoxscut cr to have any cr any suificient regarc fcr animals that » misht reascnakly be expectec tc be or the reac. c) Acceleratins cr speeCing at the saic bridge witheo ascertainin, or ensuring that it was safe sc te ¢ ¢) Failing tc heve or to keep any or any preper ccntrel of the sic vehicle. 2) Failing ts gtop, te slow down, tc swerve cr in any other way sc tc marage or control the said vehicle as tc avcic the overturn. All this is cdepisc by the cefencant. As can be sgen trom the summary cf the evidence, there are twe versicns cf the story «s te how the accident happened. There is the story tclc by the t pbaslare REE in ccurt, which is su;ported ty the plaintiff's witness, Ly. chiumya. Cr the cther hand the evidence cf the Criver is suppcertedc tw statements made by both the complainant and his witness te the Iclice sccn after the accicent, tc a certain extent the Folice evicence seems tc weigh in favour sf the cefencant's story. It is not true, es Wr. Mharge has suzgvostec, that there is ne ccnflict between the evicence cf the compl virant and his witness cn cath anc the st=tements ccntainec inTX1 anc 2. further the evicerce cf Mr. Mutupa coes not suppert the corhent icw that the defencant was criving at cver 40 m.p.h. Nhat then are the f-otst It is my consicered cririon tist as the vehicle approached Thapa Bridge the Criver reduced his s3pzec tc 30 m.p.h. Support for this fircing comes from the evidence of F..4 himself, anc F. W.2 ¢s he recuced speed withceut stating the onect spsec et which he was trevellire. The Cefencant says thot he had Slowed to 25-30 mope. n At this st2ze we set wide Civersicn es tc what Hapksnee next. The complairant's story ir ccurt is thxt the cores aftor slewing cown irmeciately after the Pradge picked up speec to 45 mMepeh. ere the criver was filtorirs threugh the animals. oa, 4's evicence is that the criver was ccirg 45-50 m.peh. immediately aftor the bridge. This evicerce is ret sv,yorted by thot cf the motor vehicle examiner, wre said that in his cpinionce fermedc after studying the len th cf the skic marks, ths criver was travelling at nct more than 49 v.p.h. The statement tc the Felice by P.'.4 aces ret stote that defendant pickec up speec after the bricge. DX1 states that at thst p rticular time the vehicle was «cing 4O to 50 m.p-h. The criver's cvicence was that he was Coinz °5 mepeh. 1 have considered the above ovicerce anc i fine as 2 fact thet efter Phapa Bridge the Criver centinuc’ tc slow Cown te reughly 25 m.peh. l reach this findings because of the evicsrce of the motor vehicle examiner anc I am of the view thet the criver was telling ths truth. The next poirt tc seattle is cxactly /what ~6— what happened after crossing the Phapa bridge. I have no hesitation in accepting the evidence of the defendant that there were heras of cattle on either sicc of the road srazirg; I make this finding because the plaintiff and F. 7.4 in DX 1 and 2, specifically say so. Murmurs have bee1 raised thet these documents were obttairec by cuestion and arswer and in case of IZ 1 it was written by a Foliceman enc further the witnesses were askec to apportion tlame as tec who caused the accidert, the driver or the younz boy? - It appears to me that the court is being esked to attach no weight to PX 1 and Dx 2 because they were obtained by meens of questions put te the witness, in other words they were not snontareous narratives. ‘This argument scems to equate confessior~ ir criminal cases with these statements. I co not agree with this line of thinking. To start with the two witnesses were not suspects in fear of being charged with a criminal offcrce ard secordly the police officers were fairly junior. mer as the witnesses who Wore senior men in their respective positions. it carrot be said that the policemen obtained the statements by unfair means. I think for the plaintiff to tell this court thet the driver was filtsring through the animals in order to pass through car orly be Gouscribed ty two words - gross exaggeretion. in these circumstances 1 finc it as e fact that as the criv xr slowec down to 25 m.ep.h. he continued travelling at this rate, there were animels on both sifos of the road grazing. Here again we heave differert stories: according te the plaintiff os they wore filtering through the animals ho saw a young boy running from Bast to “Nest crossing the road, tnors was a big herdsman standing on the roczc, enc as they continued criving anothsr boy followed the e.riicr boy, the Criver did rot s:e him, he came from behind the animals, the driver applied his brases, the car swerved anc there wes cn accident. IX 1 is as follows on this issue - oy ss ",.eAS we wer: a younzs boy on I saw a tall fell irg the cattle end before we completes I saw right side of the road arc on the 13f% side w who was starding, I think they wor3 waiting for the vehicle pass them. As we were Waiting for tose two fellows, I “a boy rurning from tre left side crossing the road proceecing to the right. That being a sudden move by that boy in front of cur Landrover, the crivar applied cmnergency brakes...% TX 2 ig more emphatic on the suddenness with which the boy rushec into the roa¢ in a lightening speed - "Ther from amongst the cattle another boy ran into the ro-< from nowhere..." I have already examined the evidence of the def:indart. I aceerpt the eviderice of the ¢.fancart, how can I properly reject the svidence of TX1 and 2? The defsrdent's evidence is supported by these two documents. The trut: of the matter is that the driver slowsd cowr, havirg satisfied bimsclf that it was proper to proceed at « reduced speec, then from nowhere a boy succenly rushed into the rove: he arplisd emergency br-hes and the vehicle overturned. + 1 new proceec to the law a:plicable. Mr. Mhange hos erguec his case on two legal principles (1) that there is a strict listility akin te that laid Gown in lylands v. Pletcher (1665) L. P.1. CR 265 ard 279 (report rot »vzilable|, where the harm occurs on tee roec in cirevmstences where pecestrisans cross the public road 2nca there -T- are carri-zew2, authorising cattle to cross from one side to another side of "the LOR. In othsr worcs no negligence or iarvlt need be provec to round liability. Authority for this propostion, accorcirg to Mr. M sc, is (i) CLEFK ANT LINISBLL 01 TORT, 13th edn. et para.911; (44) Me. Khengo argues that even if the court held against hin on his ~ rlicr submission he nevertheless maintainod that the @efendant was liable on the general principles of negligciice. Be has cited a numbor of cases ir support of his submission: I will ceal with these authorities loter in this jucgment. I return to the first submissicn, that is the defendant is liable under the rule in Fylands v. Pletcher (1466) L.f.1 Exch. 265 anc 279, affirmed in the House of Lorcs (1865) L. F.3 HL. 330. With respect to loarnec counsel, this rule is rot applicable in the present casa; for there wos no escape from a plece where the defendart has occupation or cortrol cver land to s plece which is outside his occupation or ecntrcl —- see head Ve Lyoris (J) Co. Ltd. (1947) A. C. 156. This disposes of the stri ~ Tisbility submissicn. The next argument advanced by Mr. Mhango is by way of analogy, he puts it thus - here we have a cattle crossirg clearly indicated by poles, albeit not completed, the duties of the road us3rs “hen approaching such a stru chere shoulé be ecuated to the control Lled CLOSSingS. The motor ve-icle Criver is absolutely liable if u those circumstances ic eellides with a pecestrian and injurics result from such a collisicn. Cases have been cited by Mr. Nhergo to support his arzument end ir these circumstances the arg sument goes; it wes the duty of the criver tc stcz completely unt il all the animals had p-ssed. IT heave carefully studied the provisicns of the hoac “*raffic Act ~ hegulations 38 and 39 of the (Traffic Signs) Fegulations. i ce net thirk poles planted at Phaps bric ge ard other uncompleteé structures car amount to traffic signs. This argument, in my view, is irrelevant for the protection 1s to pedestrians crossing ond ret to cattle; I think it is illogical to say that the cattla crossings should protect pedestrians. This argument 2lso fails. The third arziment is that on the sereral principles of neglivence the cefendant is liable. The argument goes to say that he was recuired to exercise higher degree of care ir criving the motor vehicle. He shoule irceec have stopped his vehicle so as to ensure perfect safety for -ny perscn who might possibly be around mith the arimals. Autherity for this prepositicn, according to counsel, is Zaibunnisa Nurmahome¢ Melida v. Chiona (1964-66) ALF 42u. Tn this case the plaintiff brevsht en actior against the defendrnt to recever damages in respect of Ccocth cf her husband in e read accident. The plaintiff's husband susteired fatnl injuries when the car ii which he wes travelling, driver: by the son of the secerd Cofendant, ccllided with ancther car driver ty the first defencart. The plaintiff, a minor, brouzht an acticn through her next friend egainst both cefencants for negligence, claiming damuges for the benefit of herself, her twe young chilcren and ancther urkerr child. She else claimed c-mages uncer the Lew Peform (Miscellaneous Provisions) Act 1934 for the berne.it of the cecerzsed's estate. The evide:-ce wes i a See mentor imine hee the car in which he defendant, ccllidee with arotha vehicle ériver, the Fanek dete wii ) 3 ven by the first cefendan @ circumstances W rs e say ot . efencent hod been discussine the peek peneee nee, cot iist ~ the Faust a g ; with his pessengers had texen one her } sken one hore off the stzering-wheel to receive moncy from Tb qd /% ue —o- the passengers in the back seat. As a result his car veerea te the centre cf the reec tewares the crcoming car Criven by tne scr ef the second defercant. The latter tried unsuccessfully to avcic a collisicn by cuttin: across the reac te the right. The accicent cccurrec or a wide stretch cf the road anc beth crivers hac an cpportunity tc aveid a ccllisicn by Criving ortc the grass vurge They were both liable, the 1st defendant 757 anc the 2nd 25). The learned Jucge applicd the dictum cf Slade, J. in Berrill v. Boac Pavlage Sxec.(1952) 2 Llcyds hep. at 492 ss Dm 5 a "You are not bcounc te foresee every extremity of fclly which cccurs cn the rerc. Equally you are certairly not entitlec tc crive vpen the footing that cther users of the road, cither drivers or pedestrians, will exercise reascrable care. You are beund tc anticipate any act which is reascnably forescvable, that is to say, anything which the experience of road users teaches them thet pecple cc, albeit negligently." It is clear from the f>cts in this case that this was a pure negligence case. 1% sets no higher standarc for the motorist. The facts clesrly shew that the defendant wes at fault, he oc left the steering wheel and concertrated cn cther matters, the sececné defendant would have svcideé the ccllision if he reacted with prudence to the danger crested by the 1st defendant. In each case both crivers fell below thse standard expected of them. This is the normal stendard of a prudent Criver, nothing higher. In the instant cose the facts are vastly different for the situction aebKed aes The animals were grazing and pcsed no Canger. Saually televart, there was nce reascnntle Canger coming from the hordsmen; youn? chilcrer, according to the evidence of the dcforcant, the Balganh nce wee She mr eriden oe Ts Cause of Toad: he was saved bs Shine oS ° _ Foy who maniee ty Sfoes tke oes Be Was soved but the pleintiff was injured. Upon these facts it is my consi Cerec view that the cefencart ¢river was not flLigent. A ceferce of accicert was pleaded and Mr. Mhango says that Sirce there is no evidence acducec by the eefencant this ¢.ferce shovle te struck cff snd jucgment entered for the plaintiff. This is nct correct, ac fence cf accicert in this case is a deninl cf negligerce and no mors. In these circumstances this also fails. 1 em aware of the suffering that the plaintiff encured; from the evidence he has heer Gissbled tut our system cemands th-t fault shculd be proved before somecne can besr the respcnsibility. Sc long ss this 1s the csse, pecple in the plaintiff's Lositicn vill be withcut a remedy: this is the law. Sc in these circumstances the pleairtiff fails. Frencuncec in cpan curt this 9th ésy cf January 19600 at Blantyre.