Kanike v NICO General Insurance Company Limited (Civil Cause 1915 of 2010) [2022] MWHC 244 (27 June 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 1915 OF 2010 (Before Honourable Justice Mambulasa) BETWEEN: ZELICIE KANIKBE...............ccccceecceccecsssccescescssescssenssessenss CLAIMANT -AND- NICO GENERAL INSURANCE COMPANY LIMITED........ DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Chikondi Alfred Khondiwa, Advocate for the Claimant Mr. Alinane Kauka, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk/Official Interpreter Ms. Violet Mombera, Court Reporter Mrs. Annie Libukama, Court Marshal JUDGMENT MAMBULASA, J [1] [2] [3] [4] Introduction The Claimant’s claim against the Defendant is for damages for pain and suffering, loss of amenities of life, deformity and costs of the action. The Claimant was a lawful fare paying passenger in a Scania Bus, Registration Number BP 6255, belonging to National Bus Company Limited which at the material time was being driven by Mr. Frank Mandevu and insured by the Defendant. On or about 28" February, 2010 the Claimant was travelling in the said bus from Blantyre to Lilongwe. Upon arrival at Linthipe 1 along the Lilongwe- Dedza M1 Road, at about 19:40 hours, the bus collided with an oncoming Volvo Truck horse, with a Zambian Registration Number TT7 which was pulling two trailers with registration numbers ABT3638T and ABT3639T. The said truck was at the material time being driven by one, Mr. Harrison Simukonda. The Claimant alleges that the accident occurred due to the negligence of the Defendant’s insured. The particulars of negligence are as follows: 4.1 driving at a speed which was excessive in the circumstances; 4.2 43 4.4 4.5 4.6 failing to keep any or any proper look out or to have any or any sufficient regard for traffic that was or might reasonably be expected to be on the road; causing or permitting the said bus to go on the wrong side of the road and there to collide with an oncoming truck; failing to see the said truck in sufficient time to avoid the said collision or at all; failing to stop or slow down, to swerve or in any other way so to manage or control the said bus as to avoid the said collision; further or in the alternative the claimant shall rely on the maxim, res ipsa loquitur. [5] In consequence of the matters aforesaid, the Claimant allegedly sustained severe injuries and has suffered loss and damage. The particulars of injuries are as follows: 5.1 5.2 5.3 fracture of the right nb; deep cut wounds on the forehead and nght elbow; abrasions and bruises on the thigh. [6] [7] [8] The Claimant further alleges that as a result of the said accident, she is no longer able to sleep on her nght side because she feels a lot of pain, has persistent headache every day. She cannot work on a computer for long because her eye releases a lot of tears and further that she cannot lift heavy objects using her nght hand due to pains in her chest. The Defendant filed a Defence in which it denies every allegation of fact contained in the Claimant’s Statement of Case and puts her to strict proof of the same. Issues for Determination There are four issues for determination in this matter. These are: 8.1 whether or not the Defendant’s insured was negligent? 8.2 whether or not as a result of the Defendant’s insured’s negligence, the Defendant is liable to compensate the Claimant for the injuries that she suffered in the accident? 8.3. whether the doctrine of res ipsa loquitur applies to this case to prove negligence on the part of the Defendant? 8.4 whether or not the Claimant is entitled to costs of the action as claimed? The Law [9] It is trite learning that in civil matters, it 1s the claimant who bears the burden of proof. In Commercial Bank of Malawi —vs- Mhango! the Supreme Court of Appeal for Malawi observed as follows: Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v National Trust Co [1927] AC 515 that the burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule is Ei qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in Constantine Line v Imperial Smelting Corporation [1943] AC 154, 174 stated that it is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative. However, in a civil action the burden of proof may be varied by the agreement of the parties - see Bond Air Services Lid v Hill [1955] 2 QB 417. [10] It is also commonplace that the standard of proof in civil matters 1s on a balance of probabilities. In Miller —vs- Minister of Pensions? Denning J said: That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the ! [2002-2003] MLR 43 (SCA). 21947] 2 All ER. 372. [11] [12] [13] tribunal can say: “We think it more probable than not,” the burden is discharged but, if the probabilities are equal, it is not. Negligence is defined as an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something that a prudent and reasonable man would not do.* In order for the claimant to succeed against the defendant in an action alleging negligence, he or she must show or prove that (a) there was a duty of care owed to him or her on the part of the defendant; (b) that there was a breach of that duty by the defendant; and (c) that he or she suffered loss and damage as a result of the breach of that duty. The decisions in a chain of authorities on this point include, Donoghue (or McAlister) -vs- Stevenson’ and Gross -vs- The Registered Trustees of Banja La Mtsogolo.° If the possibility of danger emerging 1s reasonably apparent, then, to take no precautions is negligence; but if the possibility of danger emerging 1s only a mere possibility which would never occur to the mind of a reasonable man, there is no negligence in not having taken extraordinary precautions. Per Lord Dunedin in Fardon -vs- Harcourt-Rivington° It is also trite law that a driver of a motor vehicle owes a duty of care to the other road users to drive at a reasonable speed at all times. In Banda and 3 Blyth -vs- Birmingham Waterworks Co. [1843-60] All E. R. 479-480 per Alderson, B. 411932] AI E. R. 1. 5 [1998] MLR 103. 6 (1932) AI E. R. 81. others -vs- Admarc and another’ Banda J (as he then was) at page 63 put the duty of a driver as follows: A driver of a motor vehicle owes a duty of care to other road users not to cause damage to persons, vehicles and property of anyone on or adjoining the road. He must use reasonable care which an ordinary skilful driver would have exercised under all the circumstances. A reasonably skilful driver has been defined as one who avoids excessive speed, keeps a good look-out, observes traffic signs and signals... Two of other authorities that stand for the above proposition are Kadawire - vs- Ziligone and another® and Tabord -vs- David Whitehead & Sons (Malawi) Ltd? [14] Furthermore, a driver of a motor vehicle has a duty to keep proper lookout and avoid damage to other road users. There is a plethora of authorities on this duty as well including the cases of Kantande -vs- SUCOMA and another’ and Mponda -vs- Air Malawi Limited and another." 711990] 13 MLR 59. 8 (1997) 2 MLR 139 at 144. 9 (1995) 1 MLR 297. 1 (1996) MLR 441. 1 (1997) 2 MLR 131. [15] [16] [17] A driver owes a duty to passengers to drive with reasonable care. The authority for this proposition is Sikwese -vs- Stagecoach (Mw) Ltd.'? The law on the doctrine of res ipsa loquitur is also settled. The doctrine comes into play when a claimant who has to prove negligence has, by his evidence, established that the apparatus or thing that caused the damage was under the sole management and control of the defendant and that the occurrence could not have happened without negligence on the part of the defendant but there 1s no evidence as to why or how the occurrence took place. Barkway -vs- South Wales Transport Co., Ltd'? is one among many authorities on this point. Where the doctrine applies, the court would find negligence on the part of the defendant unless he or she shows that he or she was not negligent or indeed gives a reasonable explanation of how the occurrence took place. Two of the authorities in a chain of so many are Roe -vs- Ministry of Health and others'* and Selemani and another -vs- Advanx (Blantyre) Limited.'° [18] The law on special damages is also well settled. These must be specifically stated (as in pleaded) and strictly proved.'° 12 (1995) 1 MLR 269. 1311950] 1 AITE. R. 392. 4 (1954) 2 ATLE. R. 131 at 139. 15 (1995) 1 MLR 262. ‘6 Govati —vs- Manica Freight Services (Mal) Ltd [1993] 16 (2) MLR 522-523. See also Kalua - vs- Attorney General [2013] MLR 126. Submission of no case to answer [19] At the conclusion of the case for the claimant, the defendant may make a submission of no case to answer. This is made on the basis that on the evidence adduced by the claimant the claim cannot succeed.!” [20] In City Motors Ltd -vs- Toyota Malawi Limited and Airtel Malawi Limited'* Dr. Kachale J said: Upon the plaintiff closing its case the defendants made a submission of no case to answer on the authority of Order 35 rule 7 of the Rules of the Supreme Court. It has been argued by the defendants that the evidence for the plaintiff is so unsatisfactory that it is not even necessary for them to enter a defence. In the case of Njala -vs- Kamoto and another [1995] 1 MLR 165 at 170 Chimasula-Phiri, J observed that an application under Order 37 rule 7 RSC would be upheld not only where the evidence is contradictory but even where evidence essential to establishing an integral element of the claim is lacking. It was the view of that learned judge that it was not the duty of the court to fill in gaps and discern what the basis of a given claim might be within an otherwise unclear or insubstantial body of evidence. In making those observations Chimasula-Phiri reaffirmed the views of Jere, J in Naphazi -vs- Protea Assurance Co. Lid 9 MLR 324 that course of action (i.e. terminating the hearing without going on to the defence) would save costs and militate against wasting time. [21] Section 30 of the Courts Act!’ provides that costs are in the discretion of the High Court. It provides as follows: '7 Stuart Sime, A Practical Approach to Civil Procedure (21 Edition) (2018) at 438. '8 Commercial Case No. 126 of 2011 (High Court of Malawi) (Commercial Division) (Blantyre Registry) (Unreported). Subject to this Act, the costs of, and incidental to, all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the High Court; and the discretion shall be exercised in accordance with the practice and procedure provided in the rules of procedure made by the Chief Justice under section 67 of this Act. [22] Order 31, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 is couched in the following terms: The Court has discretion as to- (a) whether costs are payable by one party to another; (b) the amount of these costs; and (c) when they are to be paid. [23] When the Court decides to make an order on costs, then, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party. This is clear from Order 31, rule 3 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017. [24] There are exceptions to the general rule, where a successful party shall not always be entitled to have an order for costs against the unsuccessful party. For instance, where a successful party recovers no more than nominal damages, it may be ordered to pay the unsuccessful party’s costs.7° The successful party may also not be entitled to costs where the issue on which a '? Cap. 3:02 of the Laws of Malawi. 2° Texaco Ltd —vs- Arco Technology Inc (1989) The Times, 13 October 1989. 10 party succeeded is raised for the first time by amendment at a very late stage.7! The Claimant’s Evidence-Direct Examination [25] In her testimony, the Claimant told the Court that she hails from Mazengera Village, Traditional Authority Mazengera in Lilongwe District. She told the Court that she works as an Administrative Assistant at Malawi Energy Regulatory Authority (MERA). The Claimant said that she remembers that on 28" February, 2010 she was travelling from Blantyre to Lilongwe as a lawful fare paying passenger in a Scania Bus Registration Number BP 6255 belonging to National Bus Company Limited and insured by the Defendant. [26] The bus departed Blantyre for Lilongwe at about 16:00 hours and upon arrival at Linthipe 1 Bus Stage around 20:00 hours or thereabout, it collided with a trailer of a Volvo Truck that was travelling from Lilongwe to Blantyre. The bus was travelling at a rather excessive speed, following which, the driver lost control and collided with the oncoming truck’s trailer. The bus failed to stop or slow down in time to avoid hitting the trailer of the oncoming truck. [27] After several minutes after the accident, they were picked by a certain white person to Kamuzu Central Hospital in Lilongwe and that is where she realized that she had sustained deep cuts on her forehead and forearm. She also had abrasions and bruises on her right thigh. She had severe chest pains and x-ray filming showed that she had a fracture on her third right rib. The ?1 Beoco Lid —vs- Alfa Laval Co Ltd & Anor [1995] QB. 137. 11 [28] [29] [30] [31] Claimant exhibited copies of her medical reports for the injuries that she sustained in the accident and they were marked, “ZK 1” and “ZK2”. Currently, the witness has an extensive scar on her forehead which has brought about permanent disfigurement on her body. She also has scars on her elbow. She said on a daily basis, she is experiencing persistent headaches, chest pains and that she cannot lift heavy objects using her right hand due to pains in her chest. When sleeping, she only uses the left side of her body due to pains on the right-hand side. The pains she is experiencing have made her to live on analgesic medicine which she is afraid might soon become a lifelong addiction. Due to this bad health situation, she always needs someone to physically support her perform domestic chores. For conjugal tasks and obligations, she cannot perform them as satisfactorily as she used to do prior to the accident due to the pains that she perpetually feels in her chest. Furthermore, the nature of her job involves a lot of reading and she is also pursuing professional studies to advance her career opportunities but due to the injury on the forehead which continues to cause visibility problems in her right eye, she does not see properly and quite often her mght eye produces tears and that is an obstacle to her reading and studying. The Claimant then later managed to get an abstract of a police report for the accident at a fee of MK2,500.00 from Dedza Police Station. The Claimant exhibited a copy of the abstract of the Police Report and was marked as “ZK3”. 12 [32] [33] [34] [35] She finally prayed that the Court does find the Defendant liable in negligence and order that she be compensated accordingly. Cross Examination In cross-examination, the Claimant confirmed that the accident occurred on 28" February, 2010 at Linthipe 1 Bus Stage. She told the Court that after the accident had occurred, they assisted the driver of the bus to get out of it. At that time, she did not realize that she was bleeding. Blood was oozing from her forehead. It was other people who had noticed that blood was oozing from her forehead. They told her to get into another motor vehicle which would carry her and other passengers to Kamuzu Central Hospital in Lilongwe. The witness told the Court that the motor vehicle that carried them to Lilongwe was driven by a white man. It was in this motor vehicle that first aid was administered to them. At Kamuzu Central Hospital, the witness was taken for x-ray filming. She was told that she had a fracture on the right rib, a deep cut on the forehead, and bruises on her nght thigh. The witness was admitted to the hospital for a period of three (3) days. The Claimant was discharged on request and came to Mwaiwathu Private Hospital in Blantyre for further treatment. The witness was shown exhibit, “ZK2”. She said that it was written by her lawyer and it was addressed to The Hospital Director, Queen Elizabeth Central Hospital where she was having check-ups. The witness confirmed that exhibit, “ZK2” was her Medical Report and that it was prepared at Queen Elizabeth Central Hospital. She further confirmed that the person 13 [36] [37] described in the said Medical Report as injured in a road traffic accident on 28" June 2010 was actually her, even though the date was incorrect. She said the correct date was 28" February, 2010. The witness confirmed that “ZK2” was authored at Queen Elizabeth Central Hospital. She went on to explain that she submitted two medical reports in the matter. The other one is exhibit, “ZK 1” which was also a Medical Report that was issued at Kamuzu Central Hospital in Lilongwe. According to the witness, it was her explanation that “ZK1” was required by her employer for purposes of compensation. She told the Court that her employer compensated her with a sum to the tune of around MK800,000.00 for the injuries that she sustained in this same accident. The witness was requested to read the “opinion” part in the abstract of the Police Report on page 2. It read as follows: According to the facts of the accident and evidence gathered at the scene, the accident was caused by the driver of the truck by failing to keep to his left side. He has been charged with the offence of causing death by reckless driving c/s 126 (4)(c) of RTA. However, file is being prepared for perusal. She told the Court that after the accident she noticed blood on her forehead. Asked to explain what caused the injury, she said she was hit by a metal which came from the bus. Asked further, which part of the bus the metal came from, she said from the right side of the bus where she had her seat. The witness confirmed to the Court that she sat on the nght side of the bus, just behind the driver. She was asked whether there was a window near where her seat was and she agreed. When it was put to her that it was a 14 [38] [39] [40] metal in the seat in front that hit her head, she refused saying she had bent down. She told the Court that she did not face the window but the metal of the bus. Asked whether she was sleeping, she said she was not, even though she was in a bowing position. The witness pointed to the specific areas where she was injured, namely, the forehead, arm and rib. When asked to explain her exact position when she was in the bus, she said she bent her head and was like in a bowing position. The witness could not tell whether she was already in a bowing position prior to the accident. She also could not tell whether there was a possibility that she was already in that position. Advocate for the Defendant put it to her that if she was sitting upright, then her head would most probably have bumped against a glass that separated the driver’s seat from hers, to which she agreed. The Claimant told the Court that there was a truck with a trailer. She said that the bus hit the trailer on the nght side of the bus and the nght side of the trailer. The witness confirmed to the Court that this meant that the bus had almost gone past the first trailer or the second one. The witness further told the Court that she saw the truck leave its side, while avoiding a cyclist, and ended up colliding with the bus, which was traveling at a high speed. The witness told the Court that had it been that the bus driver was driving at a normal speed, he could have avoided the truck and the truck could have had enough space to pass through. However, since the bus driver was driving at a very high speed, he failed to control the bus, and that is why they collided. From Dedza, the bus driver was driving very fast 15 [41] [42] [43] [44] [45] and that they all complained about the high speed. She said she saw everything in front of the driver as she had sat behind the driver’s seat. The Claimant explained that she was working for the Malawi Broadcasting Corporation when the accident occurred. She was working as an Assistant Project Coordinator. The witness holds a degree in Business Management- majoring in Strategic Management. The degree was obtained from Colombia Commonwealth University, in Malawi and Australia in 2017. The Claimant got a job at Malawi Energy Regulatory Authority (MERA) in March, 2012. She confirmed to the Court that even after the accident, her career progression has improved and has obtained better qualifications. Asked whether the Claimant had any medical report in the last five years or so, regarding her headache or reading problems arising from the accident, the witness was not able to tender in evidence any medical reports confirming that she has problems with her eyes or ears or reading. The Claimant confirmed to the Court that she sustained a fracture of the right rib based on the medical report that was prepared at Queen Elizabeth Central Hospital in Blantyre when she was treated at Kamuzu Central Hospital in Lilongwe. The witness was not able to produce in evidence any x-ray filming. She said she could bring them since she stays in Lilongwe. Re Examination 16 [46] [47] [48] [49] [50] In re-examination, the witness was shown exhibit, “ZK1”. She said it was a medical report and it came from Kamuzu Central Hospital in Lilongwe. She was also shown exhibit, “ZK2”, another medical report which came from Queen Elizabeth Central Hospital in Blantyre. She read paragraph 12 of exhibit, “ZK2” and concluded that it spoke to the fact that there was evidence that she was admitted to Kamuzu Central Hospital in Lilongwe. The Claimant told the Court that she saw a trailer from where she was sitting in the bus. There were three bags in between her seat and that of the driver and that she could see everything that was happening over the driver’s seat and also through the sides. The Defendant’s Evidence At the close of the Claimant’s case, the Defendant elected to make a submission of no case to answer and that it was not going to call any evidence. Analysis and Application of the Law to the Facts The first issue that the Court has to grapple with is whether the Defendant’s insured, namely, the driver of the Scania Bus, Registration Number BP 6255 was negligent. According to the Claimant, the bus in which she was travelling in from Blantyre to Lilongwe collided with a trailer of a Volvo Truck that was coming from the opposite direction travelling from Lilongwe to Blantyre. 17 [51] [52] The bus was travelling at an excessive speed, following which, the driver lost control and collided with the oncoming truck’s trailer. The bus failed to stop or slow down in time to avoid hitting the trailer of the oncoming truck. In other words, according to the Claimant, the accident that occurred on 28" February, 2010 was solely caused by the negligence of the Defendant’s insured. Thus, the Claimant was owed a duty of care by the Defendant’s insured and that the same was breached. As a result of the said accident, the Claimant sustained personal injuries. She sustained a fractured nght mb, deep cut wound on the forehead and elbow and abrasions and bruises on the thigh. Ms. Zelicie Kanike and other passengers were rushed to Kamuzu Central Hospital in Lilongwe where she was admitted for three days and later discharged on request. She said she went to Mwaiwathu Private Hospital in Blantyre for further treatment. Later on, the witness was going to Queen Elizabeth Central Hospital for medical check-ups. It should be recalled that in cross-examination, the Claimant said that she sat right behind the driver’s seat and that she could see in front through the driver and through the sides how the accident occurred. She said she saw the truck leave its side of the road while avoiding a cyclist and its trailer ended up colliding with the bus. The bus driver was driving at a high speed and he failed to control the bus. If he had been driving at a normal speed, the bus driver could have avoided the truck and that the truck could have had enough space to pass through. 18 [53] [54] The Defendant submitted that the evidence of the Claimant was contradictory and inconsistent and that it also departed from the statement of case,” previously called pleadings, and that therefore, there was no case to answer and it was not going to call any evidence and that the claim must be dismissed. The Claimant stated that she saw the truck leave its side of the road while avoiding a cyclist and one of its trailers ended up colliding with the bus. This in itself means that the distance between the truck and the bus was so short. Both motor vehicles were in motion. It was not reasonably foreseeable to the bus driver that the truck was going to suddenly leave its lane and come to that of the bus. The possibility of such danger emerging, would not ordinarily have occurred to the mind of a reasonable man. There was no time on the part of the bus driver to do anything to avoid hitting the nght corner of the second trailer both the horse and the first trailer having already past the bus. The fact that the second trailer of the truck veered off from its side of the road when it collided with the bus supports the fact that it was the truck driver who was negligent rather than the bus driver. The accident was inevitable. It would be wrong to hold the Defendant’s insured liable in negligence for driving and remaining on the left side of the roadway as required by law.”? Going further by the testimony of the Claimant in cross- examination that the truck driver was avoiding a cyclist, the question that arises 1s: Which was a better evil, harming one cyclist or exposing harm to 22 See the definition of “statement of case” in Order 1, rule 4 of the Courts (High Court) (Civil Procedure) Rules, 2017. See also Order 35, rule 13(1) of the Courts (High Court) (Civil Procedure) Rules, 2017. 3 See section 96(1) of the Road Traffic Act, Cap. 69:01 of the Laws of Malawi. 19 more people (passengers) that were travelling in the bus? In this Court’s view, the lesser evil was to harm one person, the cyclist and keep to its side of the roadway, than put to risk more people, the passengers, by leaving its side to go to that of the oncoming bus in a manner that was so sudden and left no time for the Defendant’s insured to do anything about it that a reasonable man would have done in the circumstances. [55] The Claimant stated that the bus driver was driving at a high speed. The bus driver started speeding after Dedza and that they complained about it. The Claimant did not state any estimate of the speed which the driver of the bus was doing at the time of the accident. The question that arises 1s: Did the bus driver exceed the maximum speed limit for passenger service vehicles which is 90 kph or not? In this Court’s view, high speed alone is not exactly equal to negligence. It depends on several other factors. For instance, in what state was the road at the time? February is usually a rainy season in Malawi, was it raining at the time? Was the road clear, as it usually is at night? Did the bus have good working headlights? Did the bus driver have good vision? If the state of the road was good, the weather clear, the road clear and the bus had good working headlights and the driver of the bus had good vision, this Court would be slow to attribute high speed, without more, to negligence. Actually, to be fair, all things being equal, drivers are expected to drive faster at night than perhaps they do during the day. Furthermore, this Court doubts the testimony of the Claimant on the issue of high speed. She is on record to have told the Court during cross-examination that she was in bowing position at the time the accident occurred. 24 See Dilla -vs- Rajani 11 MLR 113 at 116. 20 Even though she said that she was not sleeping, one wonders how someone in a bowing position or who had bent at the time of the accident would have known about the high speed at which the bus was travelling moments before the accident occurred.”° [56] There are also other aspects of the Claimant’s testimony that left the Court in doubt about some of the things she said. For instance, in cross-examination, she said she saw everything that happened (someone who said was in a bowing position) and yet, she only talked about a trailer, when the truck in issue had two trailers. This is clear from the abstract of the Police Report which she tendered in evidence as her exhibit, “ZK3”. The witness also stated during cross-examination that she requested to be discharged from Kamuzu Central Hospital in Lilongwe after three days and came to Mwaiwathu Private Hospital in Blantyre for further treatment. The Claimant tendered two medical reports in evidence. The first one was from Kamuzu Central Hospital, exhibit “ZK 1” and the second was from Queen Elizabeth Central Hospital, exhibit “ZK2”. If it is true that the Claimant was treated at Mwaiwathu Private Hospital in Blantyre, why did she not see it fit to also procure a medical report from there? Ms. Zelicie Kanike did not also bring any medical report in the last five years that spoke to her having persistent headaches and her right eye producing tears and that she was having problems to read. She also did not produce any x-ray filming in court and yet she gave the court the impression that these were available but were in Lilongwe. While these specific observations do not go towards proving liability of the Defendant’s insured as such, they go towards showing serious gaps and inconsistencies in the Claimant’s version of events. 25 See Paragraphs 36 and 37 above. 21 [57] This Court agrees with the Defendant that the Claimant departed from her statement of case. One of the particulars of negligence was to the effect that: Causing or permitting the said bus to go on the wrong side of the road and there to collide with an oncoming truck. The evidence that the Claimant gave in court was that she saw the truck leave its side of the road while avoiding a cyclist and as a result, the trailer ended up colliding with the bus, which had remained on its side of the road. The Defendant’s insured never caused the bus to go to the wrong side of the road and there to collide with an oncoming truck as it were. The Claimant stated (as in pleaded) one thing, and her evidence revealed another. The Court agrees fully with the Defendant on this point. Parties to an action as well as the Court are bound by the statements of case. By rules of statements of case, a party is not entitled to rely on any issue not specifically stated in his or her statements of case.”° If the Claimant had wished to rely on this particular of negligence, it was open to her to make an application for amendment to her statement of case, which she never did.?’ In the end, this Court is not satisfied on a balance of probalities that the accident in this matter was caused by negligence on the part of the Defendant’s insured. Actually, it was the driver of the Volvo Truck that was negligent and who caused the accident in this matter. It was unreasonable for him to take an action that exposed harm to more people that were in the bus than one cyclist - if one 1s to go by what the Claimant testified in court. 26 See generally, Kamwendo -vs- Reunion Insurance Company Limited [2011] MLR 128. 2” Order 7, rule 23 of the Courts (High Court) (Civil Procedure) Rules, 2017. See also Blay -vs- Pollard and Morris [1930] 1 K. B. 628 where Scrutton L. J. put it thus: Cases must be decided on the issues on the record. If it is desired to raise other issues they must be placed on the record by amendment. 22 [58] The better evil in the circumstances of this case would have been to harm one person. There was nothing that the Defendant’s insured could have done to prevent the collision because the trailer veered to the bus driver’s lane so suddenly and the distance between the bus and the trailer was very short considering that both motor vehicles were in motion. As it turned out, the driver of the bus, the point of impact (the nght corner of the bus) hit the right comer of the second trailer and died from the injuries he sustained in the accident and the Claimant and other passengers were also injured. This information 1s in the abstract of the Police Report. While abstracts of Police Reports are not conclusive or determinative, the Claimant’s testimony was in agreement with the opinion that was in the abstract of the Police Report that she tendered in evidence. Unfortunately, the driver of the Volvo Truck, the owners of the said truck and their insurer are not parties to this case, the Claimant having discontinued the present action against them on 27" June, 2011. This Court would have held them liable in negligence for causing the accident herein. There is no point in dealing with the remaining issues in this matter. The first issue having failed, the rest fall away naturally. In the final analysis, this Court upholds the Defendant’s submission of no case to answer, even though such a course of action is not specifically provided for under the Courts (High Court) (Civil Procedure) Rules, 2017. Nevertheless, a submission of no case to answer in civil litigation is a useful practice that this Court is willing to accept and continue applying as part of its civil 23 [59] [60] [61] [62] procedure but founded on common law.** In the circumstances, the Claimant’s claim against the Defendant’s insured fails. Costs are awarded in the discretion of the Court as 1s provided by law. The Claimant has failed to prove her case on a balance of probabilities. The Court makes no order as to costs. Finding and determination In view of the foregoing, it is this Court’s finding and determination that the Claimant’s claim has failed and the Court dismisses it. Each party shall bear its own costs. Any party dissatisfied with this judgment has a nght to appeal against it to the Supreme Court of Appeal for Malawi. Made in open court this 27" day of June, 2022 at Blantyre, Malawi. la ve M. D. MAMBULASA JUDGE 8 Taurie -vs- Raglan Building Company Limited [1942] 1 K. B. 152; See also Ramsden -vs- Ramsden [1954] 2 All E. R. 623; Storey -vs- Storey [1960] 3 All E. R. 279 where it was stated that: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof had not been discharged. Alexander -vs- Rayson [1936] 1 K. B. 169. 24