Mafenyetsera Transport Company Limited v Land Train Haulage (Civil Cause 448 of 2001) [2001] MWHC 130 (3 December 2001)

Cy) Pea “he uf & é é Ix, , Np we oa Z ~, f JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 448 OF 2001 BETWEEN: MAFENYETSERA. TRANSPORT CO. UTD: |. «é sssssnccsansswanesasaseoaascaes sees PLAINTIFF -AND- LAND TRAIN HAULAGE ..........ccccceccee eee ene eee ene eens eeneesennneeeaneneaeeseee DEFENDANT CORAM: HON. JUSTICE RS SIKWESE Kara; of Counsel for the plaintiff Banda; of Counsel for the defendant Mithi; Official Court Clerk JUDGMENT Sikwese J Background This was an action in tort of negligence arising out of a road accident involving the plaintiff s bus. The matter was heard before my brother the late Justice Manyungwa in 2010. The parties closed their respective cases on 23 February 2010. The honourable judge reserved his judgment to be delivered on 9 April 2010 at 14.00 hrs. This did not happen due to unforeseen circumstances hence this Court’s intervention today. This Court did not have the benefit of observing the demeanour of the sole witness that gave evidence in the matter. However it is clear from the court record that the testimony was acceptable and subjected to cross examination. Further the judge allowed both parties to prepare and submit written submissions. This Court benefited from the submissions which analysed and summarised the issues and the law. Facts The plaintiff was operating a sixty - five seater passenger bus. On the material day, 30 November 1996 at around 22:15 hrs, the plaintiffs driver was driving towards Blantyre from Mwanza direction when at Chifunga turn off he swerved off the road and crashed onto a side embankment. The impact of the crash caused damage to the bus. The nature of the damage was not disclosed. This Court was asked to consider the question of liability. It was the plaintiffs witness’ contention that the driver of the bus was forced to swerve off the road because the defendant’s driver had parked his truck with full lights on at a corner on the wrong side of the road, the left side, facing the Mwanza direction. The plaintiffs driver was allegedly dazzled by the full lights as he was trying to avoid a collision with the defendant’s vehicle and an oncoming vehicle. He had two sets of lights from two vehicles facing him. It was further averred that the defendant’s driver did not place any warning signs that he was stationery. The witness also stated that in her estimation, the plaintiffs driver was driving the bus at a speed of around 70KM/ hour. The defendant did not call any witness but in their submissions and skeleton arguments they denied causing the accident. They argued that the plaintiff caused or contributed to the accident by colliding with a well lit and stationery vehicle because he was driving too fast, failed to take heed of the presence of the defendant’s vehicle and failed to slow down, swerve, stop or in any other way to manage and control the plaintiff's vehicle so as to avoid the accident. Issues There are two main issues for the Court’s consideration and these are (a) whether the defendant’s driver negligently parked his vehicle leading to the accident? and (b) whether the plaintiff's driver contributed to the accident by driving at an excessive speed and failing to make a proper look out for other road users so as to avoid a collision? The Court will deal with the issues in reverse. The Law For an action based on negligence to succeed, the plaintiff must show that the defendant owed him a duty of care. The duty of a person who drives a vehicle on a public road is to use reasonable care to avoid causing damage to persons and property. Reasonable care entails care which an ordinary skilful driver or rider would have exercised under all circumstances. Under the circumstances of this case both the driver of the plaintiff's bus and the driver of the defendant’s vehicle owed a duty of care to other road users including to each other. As narrated by the eye witness, the plaintiff's driver was under a duty to keep a proper look out for on coming vehicles and to manage the vehicle in such a way that in an emergency he would be able to slow down, swerve safely or stop. From the narration of the eye witness, the 2 driver of the plaintiff did not discharge this duty because he failed to slow down or stop or swerve off safely when he was faced with an emergency. It is this Court’s view that if the plaintiff's driver was driving within a safe speed, he probably would have avoided the accident especially because the other vehicle was stationery and was visible. The Court agrees with the defendant that a speed of 70km/ hr for a sixty-five seater bus carrying passengers and driving at night time was too excessive and therefore the plaintiff's driver drove the bus negligently. It is the Court’s finding therefore that the defendant has established contributory negligence as a defence. The defendant’s driver decided to stop by the road side and leave his full lights on facing on coming vehicles. He did not bother to indicate that he was stationery. The vehicle was parked on the road itself or very close to the road such that any oncoming car would have to swerve to the right to pass safely. Therefore the defendant’s driver was negligent in that he failed to take reasonable care to avoid leading others into colliding with his vehicle or other vehicles. It was because of this breach of duty, parking on the wrong side of the road without giving any proper warning that he caused the damage suffered by the plaintiff. If he had not parked his vehicle at that particular place and in those circumstances, the plaintiffs bus would probably not have been involved in an accident and suffered the damage complained of. Finding In view of the foregoing it is this Court’s finding that the plaintiff suffered damage to his bus due to the negligence of the defendant’s driver. It is also the finding of this Court that if the plaintiff had kept a proper look out, managed the bus and drove within a reasonable speed limit lower than 70km/hr he would have avoided the accident. He contributed to the accident. In this Court’s view each party contributed 50 percent to the accident, I so find. Each party to bear own costs. Pronounced in Open Court this 30 day of December 2013 at Principal Registry JUDGE