McDonald Mhone v Michael Chavula & Anor (Civil Cause 93 of 2016) [2018] MWHC 1185 (8 October 2018)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL CAUSE NO. 93 OF 2016 BETWEEN MCDONALD MHONE ....................................................................... CLAIMANT AND MICHAEL CHA VULA ................................................................. 1 ST DEFENDANT PRIME INSURANCE CO. LTD ........................................................ 2ND DEFENDANT CORAM: Honourable Justice T. R. Ligowe C. Ghambi, Counsel for the Claimant E. Mbotwa, Counsel for the Defendant F. Luwe, Official Interpreter R. Luhanga, Recording Officer and Court Reporter Ligowe J, JUDGMENT This is a case of personal injuries. The Claimant claims damages for pain and suffering, damages for permanent body deformation, damages for loss of amenities of life, the cost for a medical and police report, K3 000 each, transport costs to and from hospital amounting to Kl 16 800 and costs of the action, from the defendants, due to the l 51 defendant's negligent driving of motor vehicle registration number LL 2137, Toyota Passo, insured by the 2nd defendant. He claims he was hit by the 1 st defendant's motor vehicle coming from the opposite direction at Katoto Filling Station and sustained fractures of the femur, tibia and fibula and sustained a deep cut on the forehead. The defendants deny the claims and plead contributory negligence on the part of the claimant. Only the claimant gave evidence at trial. He stated that he was on 21st December 2015 about 19:30 hours riding a motor cycle registration number BU 3390 from Mchengautuwa going to Katoto Filling Station in the city of Mzuzu. Closer to the Filling Station, as a bus passed going the opposite direction he saw bright lights from a car behind the bus wanting to overtake it. The car was cruising and was so close that although he tried to swerve to the edge of the road, it collided with him. He was injured and became unconscious. He was taken to Mzuzu Central Hospital and gained consciousness the following day, feeling pains all over his body. He realised after being examined by the doctors that he had a fractured left femur, a fractured right tibia, a fractured fibula and a deep cut on the forehead. He exhibited a police report regarding the accident and a medical report regarding the injuries he suffered. In cross examination, he stated that he saw the car afterwards at police and met the driver of the car. It was the police who came to the scene who noted that the vehicle was insured by the 2nd defendant. The car coming behind the bus was about 12 meters away and in high speed. That was so short for him to be able to swerve to avoid being hit. And the lights had blinded him. He had not brought his Health Passbook to prove the injuries he suffered but exhibited a medical report issued to him on 6th April 2016. The defendants did not bring any evidence to support their defence that the accident was solely caused or contributed to by the negligence of the claimant. The particulars of the contributory negligence are that the claimant failed to see the 1st defendant's motor vehicle in good time, he failed to apply brakes in time, failed to keep a proper lookout and failed to swerve his bike or in any way manage or control his bike so as to avoid the accident. Apart from this, the defence is essentially a general denial. Paragraph 2 states:- "The defendants deny paragraphs 2, 3, 4, 5, 6, 7 and 8 of the plaintiffs statement of claim and put the plaintiff to strict proof of the contents." • 5 Counsel for the defendants argues in his written submissions that the 2nd defendant was not the insurer of the motor vehicl� registration number LL 213 7 on the basis that they denied in their defence and the claimant brought no evidence to prove that it was so insured and it transpired in his cross examination that he was told about the fact by the police. Counsel cites Annania Mwaulambo v. Thoko Sichali and Prime Insurance Co. Ltd. Civil Cause No. 267 of 2015 (Mzuzu Registry) (unreported) where this court held that it was hearsay for the plaintiff to rely on the fact that he was told by the 1st defendant that the vehicle was insured by the 2nd defendant. One distinction between that case and this case is that in that case the defendants pleaded clearly that the 2nd defendant had never been the insurer of the vehicle that was involved in the accident. Order 18 rule 13(3) of the Rules of the Supreme Court (the rules of procedure of the High Court at the time the defence was filed) provided that:- "Every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them." The significance of this rule is that "there is an implied admission of every allegation of fact made in a pleading which is not traversed and the admission has the same value and effect as if it were an express admission." (See para. 18/13/4, The Supreme Court Practice 1999, Vol. 1.) This is probably why Lord Blackburn stated in Wallingford v. Mutual Society (1880] 5 AC 685 at 704:- "I think that when affidavits are brought forward to raise a defence, they must condescend upon particulars. It is not enough to swear that 'I owe the man nothing ... ' that is not enough. You must satisfy the judge that there is some reasonable ground for saying so ... " To say that the 'defendant puts the plaintiff to proof was actually held an insufficient denial in Harris v. Gamble (1878) 7 Ch. D. 877. 11 With all due respect, it is bad to plead as the defendants did in paragraph 2 of their defence in this case. Every allegation of fact must be specifically traversed. So, the argument that the claimant in this case has not properly proved that motor vehicle registration number LL 213 7 was insured by the 2nd defendant does not hold, as in the face of the insufficient denial, there is an implied admission. Therefore it is not an issue before this court whether the vehicle was insured by the 2nd defendant. Counsel for the defendants relies on the same defence with regard to the defendants' denial of the negligence alleged by the claimant. The result is the same. Counsel for the claimant beautifully summarised the duty of care of drivers in his written submissions as stated in Banda and others v. ADMARC and another [1990] 13 MLR 59, Mandiwa and others v. Star International Haulage Co. Ltd. and another [1991] 14 MLR 217 and Sagawa v. UTM 10 MLR 303, that they owe a duty of care to other road users not to cause damage to them, their vehicles and their property and so they have to avoid excessive speed, keep a good look-out and observe road signs and signals. And when overtaking they should do so only when it is safe, and keep watch on the road ahead. The evidence given by the claimant clearly shows that the 1st defendant breached this duty. The defendants have not supported their defence of negligence or contributory negligence of the claimant with any evidence. 16 In view of the foregoing, I find the 1st defendant liable in negligence in this case and the 2nd defendant liable to pay the damages claimed, plus costs of the action. The damages will be assessed on a date to be fixed, as neither of the parties submitted regarding the quantum of damages in their submissions. For the sake of future conduct of cases of this nature, I direct that the trials should include matters of assessment of damages in order to avoid wasting time. 19 Made in open court this 8th day of October 2018. 5