Kanjerwa v Said & Anor. (Personal Injury 558 of 2016) [2018] MWHC 68 (30 May 2018)

Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Lim ited Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 558 OF 2016 ELUFE KANJERWA BETWEEN -AND- CLAIMANT HASSAN S A ID I.............................................................................1st DEFENDANT REUNION INSURANCE COMPANY LIMITED.................2nd DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mipande, o f counsel, for the Claimant Mr. Katuya, of counsel, for the Defendants Mrs. Jessie Chilimapunga, Court Clerk JUDGEMENT Kenyatta Nyirenda, J. The Plaintiff is claiming damages for personal injuries arising as a result of alleged negligence o f the 1st Defendant, being the rider of a motor cycle registration number LL 1129 Sanlg insured by the 2nd Defendant. The Defendants deny liability. The case o f the Plaintiff, as set out in the Statement of Claim, is as follows. On or about 1st July 2016, the 1st Defendant was riding the motor cycle from the direction o f Matawale junction heading towards Zomba Army Airwing and upon arriving at or near Village Headman Mwandakale’s residence he negligently hit the Plaintiff who was crossing the road from right to left. The alleged negligence has been particularized as follows: “(a) D riving a t an excessive speed. (b) D riving w ithout due regard to the safety o f other ro a d users, particularly the p la in tiff herein. Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. (c) Failure to control or manoeuvre the said vehicle in any w ay so as to avoid hitting the plaintiff. (d) G enerally fa ilin g to observe road traffic rules a n d regulations It is further alleged that, as a result of the accident, the Plaintiff sustained the personal injuries, as particularized in Statement of Claim. The Plaintiff claims damages for pain and suffering, damages for loss of amenities, damages for disfigurement, special damages in the sum of K13,500.00 being the cost o f Death Report and K10,500 being the cost of Police Report and costs o f the action. By their Defence, the Defendants deny all allegations of fact contained in the Statement of Claim. They equally deny (a) that the accident occurred in the manner alleged in the Statement o f Claim or at all and (b) the alleged or any negligence on the part of the 1st Defendant either as alleged and particularized therein or at all. It has also been averred that the accident was caused solely or, alternatively, contributed to by the negligence of the 1st Plaintiff in that: “while the 1st defendant was driving the said m otor vehicle along the sa id road properly the p la in tiff who was on the side o f the road a n d h a d already seen the approaching vehicle inexplicably suddenly ran into the road in an attem pt to cross the road but within a short distance fro m the vehicle and the 1st defendant notw ithstanding the exercise o f reasonable care a n d skill in the emergency thereby created was unable to avoid the collision. ” The Defendants also make no admission as to the alleged or any injury, loss or damage. Further, the 2nd Defendant states that its liability to indemnify the insured or an authorized driver is limited to the maximum amount stipulated in the policy o f insurance issued by it in respect o f the motor cycle and a third party, including the Plaintiff, cannot recover any sum above the said policy limit. The Court reminds itself that, as these are civil proceedings, the required standard o f proof is proof on a balance o f probabilities. This is a lesser standard than that required in criminal proceedings which is proof beyond reasonable doubt. The Court also bears in mind that a party that alleges the existence o f certain facts bears the burden o f proof in respect of such facts: Commercial Bank of Malawi v. Mhango [2002-2003] MLR 43 (SCA). It, therefore, follows that in the present case the burden o f proof is on the Claimant as the party who has asserted the affirmative to prove on a balance o f probabilities that he sustained injuries and suffered damage as a result o f the accident which was caused by negligence o f the 1st Defendant: see B. Sacranie v. ESCOM, HC/PR Civil Cause No. 717 of 1991 [unreported] wherein Villiera J had this to say: Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. “It is im portant to observe that the burden o fp r o o f never shifts fro m the C laim ant to the D efendant except perhaps where the D efendant has p lea d ed contributory negligence. It is, therefore, not sufficient fo r the C laim ant m erely to prove that the D efendant was negligent. H e m ust prove fu rth e r that it was that negligence w hich caused the harm or loss suffered’'’ The one and only witness for the Plaintiffs case was the Plaintiff himself. In examination in chief, he adopted his Witness Statement whose contents more or less mirror what is alleged in the Statement o f Claim. In this regard, I deem it unnecessary to re-state everything therein except the Plaintiffs narration o f how the accident occurred. This is to be found in paragraphs 2 to 8 which read as follows: “2. ... The accident occurred at M w andakale ’s residence. 3. A t the m aterial time I h a d been crossing the ro a d a t M ataw ale Trading Centre fro m right to left as we fa c e the direction o f Airwing. 4. I h a d crossed the white line and I was about to fin ish crossing the ro a d w hen the 1st defendant, driving the 2nd d efen d a n t’s insured m otor cycle fro m the direction o f M atawale Junction heading towards Zom ba A rm y A irw ing hit me. 5. The sa id 1st defendant h ad been riding the sa id m otor cycle in high speed despite that he w as p a ssin g through a busy place and he d id not stop, reduce speed, or in any w ay a void hitting me as I w as crossing the ro a d in his p la in sight. 6. A fter the accident, the p la in tiff was taken to hospital w here he was receiving treatment. Two police officers arrived a t the hospital a n d they, am ong others, show ed me an insurance disk fo r the vehicle that hit the p la in tiff a n d I noted and recorded that the sa id vehicle was insured by the 2nd defendant herein under insurance num ber 130639311 valid fro m 01/02/2016 to 17/01/2017. The said police officers returned with the said insurance disk, a n d I only kept the sa id insurance details on a piece o f paper as they advised me to. 7. A po lice report was issued fo r the accident. I refer to the sa id police report m arked “E K 1 ” 8. I have noted that the insurance details as I q uoted above are the sam e as indicated on the police report exhibited herein. ” In cross-examination, PW1 testified that he saw that the motor cycle lights were on and that it was being driven at a fast speed. Based on the said evidence, the following Q and A ensued: Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. Q: Being 7 pm, it was dark and there was a bike coming so you had a duty to protect yourself by waiting until the motor cycle had passed you before you could cross the road, not so? A: No, it was far, hence I decided to cross the road. Q: You said the motor cycle was in great speed, right? A: Q: Yes So you decided to cross the road knowing fully well that the motor cycle was approaching at great speed? A: I crossed and I was hit after reaching the other side. Q: Do you know where Matawale road is in Zomba A: It is at a junction with Jali Road Q: This accident happened near the junction. A: No! It was after the junction Q: Just after the junction A: A little bit after the junction Counsel Katuya then asked the Plaintiff questions about a disk and the Q and A went as follows: Q: Did the police officers record the details o f the accident? A: Yes, two officers came to see me at the hospital and showed me a disk which they had removed from the motor cycle. Q: What did you see from the disk? A: I saw the registration number of the motor cycle was LL 1129 and that it was insured by Reunion Insurance Company Limited. Q: When did they visit you at the hospital? A: Two weeks after the accident Q: Are you lying? A: No I am not. Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Lim ited Kenyatta Nyirenda, J. Q: Why did they visit you? A: Q: I do not know. But they told me that the rider o f the motor cycle is Mr Hassan Saidi and he had not gone to the police station again since the accident. Hence they Were asking me i f the said Mr Hassan Saidi had visited me in the hospital to which I said NO. The motor cycle was given back to the rider a day after the accident with the insurance disk intact on the motor cycle; how would the police bring you the disk? A: I don’t know, but they brought me the disk after 2 weeks. In re-examination, the Plaintiff was asked why, having seen the oncoming motor cycle, she decided to cross the road. In response she stated that she started to cross the road because the motor cycle was very far but suddenly the motor cycle got closer and the rider did not swerve to try and avoid hitting me. The Defendants called one witness, namely, the 1st Defendant. He adopted his witness statement as his examination in chief and the material part is as follows: “6. On the day o f accident, I was riding the m otor cycle fro m the office near M ulunguzi going home near Zom ba — Chinam wali A rm y Airbase. A t M atawale Junction, I turned right fro m the Zom ba - Chinam wali M l R oad into the M alawi - Jali Road. I p a ssed through the busy M atawale Trading Centre around 7PM. A great distance thereafter, I saw a car com ing fro m the opposite direction on my right ha nd side in high speed. I also saw the claim ant w alking towards the road fr o m the right h a nd side. A s m y m otor cycle a n d the car were closing up, the claim ant unexpected entered the ro a d while running. She ran fa s t because o f the approaching w hich w as roughly about 10 m etres aw ay when she entered the road. The car hooted a n d I also sounded the horn. Because she harried across the ro ad in high speed a n d the m otor cycle w as closer than the car she ended up hitting m otor cycle along the right hand side m iddle o f the m otor cycle. She also h it m y right hand elbow while m y hands were still on the handles. In the sam e nick o f time, I tried to swerve to the left where I fe ll dow n w ith the m otor cycle. She also fe ll down in the road. 7. I called fo r a m inibus and we p ic ke d her up so she could be taken to the hospital but we fir s t h ad to go to the police to report the accident. One police officer escorted us to Zom ba C entral Hospital. Thereafter, the police officer a n d I visited the accident scene an d I explained everything that h a d happened. We then took the m otor cycle a nd w ent to the police station. The police officer told me that when a driver gets involved in an accident there is n eed fo r him to p a y a fin e Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. a nd that I also needed to p a y a fine. I was asked to p a y K 20,000 before I could get back m otor cycle. The fo llo w in g day I m anaged to fin d K 10,000 w hich I p a id a nd g o t the m otor cycle ba ck One o f the officers w anted to issue a receipt but another officer told her not to issue any receipt. They never asked me fo r the balance after this. 8. I verily believe that the accident was caused by the claim ant who ran into the road in an attem pt to quickly cross the ro a d in fr o n t o f on-com ing car w hich was com ing at high speed a n d ended up colliding w ith the m otor cycle w hich was p roperly on the left side o f the road. ” In cross-examination, the 1st Defendant confirmed that the registration number of the motor cycle is as stated in the statement o f claim, that is, LL 1129. He admitted that he is not a licensed motor cyclist. Counsel Mipande then quizzed the 1st Defendant on the steps he took to avoid hitting the Plaintiff and the Q and A that ensued went as follows: Q: Your statement does not say you applied emergency brakes, why did you not apply the same? A: I applied emergency brakes. Q: Show me in your statement where you said you applied emergency brakes. A: [Silence - no response] Q: Did you hoot? A: Yes I hooted. Q: How far were you when you saw the claimant first? A: About 25-30 meters. Q: What was the claimant doing? A: She was walking towards the road. Q: Was she running? A: No. Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. Q: You said she was running as she crossed the road. When did she start running? A: Q: I didn’t see when she started running but she was running when she was crossing the road. So, when you saw her 25-30 meters away, she disappeared from your eyes that you didn’t see her starting to run, but she only appeared again when she was running while crossing the road? A: Yes. Q: Where were you looking? A: In front where I was going. Q: How come you did not see her starting to run? A: I don’t know. Q: How far from her were you when you saw her running while crossing A: Q: the road? About 5 meters. Did you swerve in order to avoid hitting her, considering she was 5 metres away? A: No I only swerved after the collision. Q: What did you do when you saw her 5 meters away crossing the road while running? A: I hooted. Q: What else? A: I applied emergency brakes. Q: Do you recall what I told you earlier that your witness statement does not say that you applied emergency brakes and your witness statement is your evidence in chief in this matter? A: Q: Yes I recall. So, having seen the claimant too close to you on the road, you found it wise to hoot, not to swerve or apply emergency brakes is that correct? Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. A: [Silence - no response] Counsel Mipande concluded his cross-examination by asking the 1st Defendant if he knows an insurance disk and his answer was in the negative. He also confirmed that he would not know if the police had removed it from the motor cycle, since he does not know it. On being re-examined by Counsel Katuya, the 1st Defendant more or less repeated what is contained in his witness statement. The case o f Blyth v. Birmingham Waterworks Company (1856) 11 Ex Ch 781 is famous for its classic statement of what negligence is and the standard o f care to be met. Baron Alderson made the following famous definition o f negligence: “Negligence is the om ission to do som ething which a reasonable man, guided upon those considerations w hich ordinarily regulate the conduct o f hum an affairs, w ould do, or doing som ething w hich a prudent a n d reasonable m an w ould not do. The defendants m ight have been liable fo r negligence, if, unintentionally, they om itted to do that which a reasonable p erso n w o u ld have done, or d id that w hich a p erson taking reasonable precautions w o u ld not have done” For an action in negligence to succeed, the plaintiff must show that (a) there was a duty of care owed to him; (b) the duty has been breached; and (c) as a result o f that breach he has suffered loss and damage: see Donoghue v. Stevenson [1932] AC 562 quoted with approval by Ndovi, J., as he then was, in Kadawire v. Ziligone and Another [1997] 2 MLR 139 at 144. In Banda and Others v. ADMARC and Another [1990] 13 MLR 59, Justice Banda, as he then was, stated the duty o f care owed by a driver to other road users as follows: “A driver o f a m otor vehicle owes a duty o f care to other roa d users not to cause damage to persons, vehicles a n d property o f anyone on or adjoining the road. He m ust use reasonable care w hich an ordinary skillful driver w ould have exercised under all the circumstances. A reasonably skillful driver has been defined as one who avoids excessive speed, keeps a g o o d look-out, observes traffic signs and signals. ” The dicta by Justice Banda was cited with approval by the Supreme Court of Appeal in Southern Bottlers Limited & another v. Charles Chimdzeka MSCA Civil Appeal No. 41 of 1997 (unreported). Looking at the evidence in the present case, I am satisfied that the 1st Defendant was reckless and negligent in the manner he rode the motor cycle at the material time having regard to the fact that the accident took place at a highly populated area. Further, by merely focusing on what was happening in front o f the motor Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. cycle, he failed to keep a proper look-out as is demanded o f a reasonably skillful driver. Furthermore, a reasonable and prudent motor cyclist seeing a person crossing the road five meters ahead o f him “and running as it were” would not decide to hoot. As was rightly submitted by Counsel Mipande: “H ooting is intended to alert a person o f the im pending presence o f a m otor cycle/vehicle a t a p lace w here that p erson is or is likely to be a nd therefore the sa id person, upon being alerted, he/she m ust avoid being fo u n d at the sa id dangerous place. This obviously takes hearing o f the hoot on the p a rt o f the person a n d then reacting to it by m oving away or avoiding to be fo u n d a t the sa id dangerous place. This is clearly a chain o f events which takes tim e a n d cannot be expected to be p erform ed when a m otor cycle is fiv e m eters aw ay fro m that person. The person m ay not have enough time to hear and react to the hooting by m oving aw ay or avoid being fo u n d at the dangerous place. The reasonable a nd pru d en t thing to do on the p a rt o f a m otor cyclist in the circum stances is to apply em ergency brakes while attem pting to swerve or in any way avoid colliding with the claimant. ” In the present case, it being clear that the 1st Defendant did not apply emergency brakes nor swerve or do anything to avoid colliding with the Plaintiff but rather decided to hoot when the motor cycle was only five meters away and also decided to swerve only after the collision, the 1st Defendant failed to do what a reasonable and prudent motor cyclist would do in the circumstances and hence he was negligent. In view o f the foregoing, I hold that the Plaintiff has, on a balance o f probabilities, succeeded in his claim for damages for personal injuries sustained and loss suffered due to the negligent riding o f the motor cycle by the 1st Defendant. I now turn to the assertion by the Defendant that the accident was caused by the negligence o f the Plaintiff. Having held that the 1st Defendant was guilty of negligence, I cannot at the same time find that the accident was wholly caused by the Plaintiff. In the premises, if anything at all, the Plaintiff can only be found to have contributed to the cause of the accident, that is to say, he is guilty of contributory negligence. Counsel Katuya submitted that the accident was caused by the negligence o f the Plaintiff. The arguments were put thus in the Final Written Submissions: “8. In cross-exam ination, Counsel fo r the claim ant dw elt at length on w hether or not the 1st defendant w as licensed to ride the m otor cycle. The 1st defen d a n t’s honest answ er w as no. With due respect, the issue o f w hether or not the 1st defendant h a d a license is an issue fo r crim inal laxv under the R o a d Traffic Act. It has very Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. 9. 10. little to do with the question as to who between the claim ant a nd 1st defendant is to blame fo r the accident. It is a question o f causation - cause an d effect. Is the fa c t o f the 1st defendant being a non-holder o f a driving licence fo r m otor cycles the cause o f the accident? The answer is No. Using the “but fo r ” test one cannot say w ith a sense o f conviction that the accident w o uld not have happened but fo r the absence o f a driving licence on the p a rt o f the 1st defendant. I f made, that w ould be a logically and evidentially absurd conclusion. From the totality o f the evidence, it is the negligence o f the claim ant that caused the accident by running in fr o n t o f an approaching car a n d attem pting to cross the road in a hurry w holly oblivious to the m otor cycle w hich was about to pa ss the oncom ing car going in opposite directions. It is her who hit the motor cycle. H er allegation that she saw the motor cycle at a distance and when she was crossing the road the m otor cycle was fa r aw ay a nd it w as m oving very fa s t d o e sn ’t m ake sense. I f it was fa r away as alleged, how d id she then collide with it? The version that m akes logical and practical sense is the one given by the 1st defendant. There was a car com ing fro m the opposite direction a nd the claim ant who w as on the sam e side o f the road as the car, p lu n g ed into the ro a d w hen the car w as close in an attem pt to cross the road ahead o f the car a n d ended up colliding with the 1st defendant’s m otor cycle w hich w as pro p erly proceeding on the left side o f the road. The claim ant tried to conceal the fa c t that she ran in fr o n t o f an approaching car a nd sa id that there w as no any other vehicle apart fro m the m otor bike. She was peddling a lie. ” The law on contributory negligence was tersely put by Lord Denning in Jones v. Livox Quarries Limited [1952] 2 QB 608 at p. 615 as follows: “A person is guilty o f contributory negligence i f he ought reasonably to have foreseen that, i f he d id not act as a reasonable pru dent man he m ight hurt himself; a n d in his reckonings he m ust take into account the possibility o f others being careless. ” In the present case, much as the 1st Defendant was negligent, the Plaintiff was also negligent. She acted in sheer disregard o f her safety and welfare by attempting to cross the road when she was aware o f an approaching car whose speed she had not ascertained. If the Plaintiff had acted as a reasonable person and properly considered her actions, she could have clearly foreseen that her actions would cause harm or injury to herself. It is a settled principle o f law that a pedestrian also owes a duty o f care to other road users to move with due care: see s.l 17(5) o f the Road Traffic Act. In view o f the foregoing, I find that the Plaintiff was guilty o f contributory negligence to the extent o f two-fifths. I, therefore, hold that the Plaintiff was to the extent o f two-fifth responsible for the cause o f the accident giving rise to the claims in this action. to Elufe Kanjerwa v. Hassa Said and Reunion Insurance Com pany Limited Kenyatta Nyirenda, J. All in all, I hold that (a) the 1st Defendant was responsible for the occurrence of the accident to the extent o f three-fifths, and (b) the Plaintiff was guilty o f contributory negligence to the extent o f two-fifths. I, accordingly, enter judgment in favour of the Plaintiff against the Defendants, with costs, to the extent of three-fifths of her claims and order that damages be assessed by the Registrar. Pronounced in Court this 30th day of May 2018 at Chichiri, Blantyre, in the Republic of Malawi. Kenyatta Nyirenda JUDGE li