Mhango v Mwangwazu and Another (Civil Cause 105 of 2017) [2020] MWHCCiv 49 (24 September 2020)

Mzondi Mhango v Isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHC IN THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU REGISTRY: CIVIL REGISTRY CIVIL CASE NO.105 of 2017 wtp MANGO anne csvsreeeenenn roneanenonasnncanennaenensarnnsans sie SSNS Claimant -and- texare: MIWSTIGWARE science wore ne namemnnnenand TEENS 1st Defendant General Alliance Insurance Company Limited.........-.:-: rr 2nd Defendant OT Coram: Honourable Justice D. A. DEGABRIELE Mr. B. Kondowe Counsel for the Claimant Mr. M. Munthali Counsel for the Defendant Mr. A. Mhone Official Interpreter Mrs. R. Luhanga Court reporter oC DeGabriele, J JUDGEMENT ee eee 4. Introduction 1.1. This matter was commenced by a specially endorsed writ of summons filed on 98 April 2017. The Claimant is claiming damages for negligence, damages for loss of amenities of life, special damages, and the costs for this action. 1.2. The Defendants denied liability. 2. The Claimant’s case 2 1. The statement of claim states as follows. Mzondi Mhango v isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHC 4 On or about the 49th of November, 2016 the Claimant herein was lawfully walking along the Rumplhi - Ekwendeni road. 2. At about the same time and date as mentioned above, the 1st Defendant drove negligently a motor vehicle registration number BP 5606 and hit the Claimant. PARTICULARS OF THE NEGLIGENCE 4 Failure to properly look out for other road users especially the Claimant b. Over-speeding 3. In fact, the 1st Defendant was charged and fined for the offence of negligent driving contrary to section 127 of the Road Traffic Act 4. Asaresult of the accident, the Claimant suffered damage and loss. PARTICULARS OF INJURIES q. Bruises on the head and dislocation of the right leg (patella) 5, Further, the Claimant suffered special damages PARTICULARS OF DAMAGES 4. MK3,000.00 being the cost of obtaining Medical Report b. MK3,000.00 being the cost of obtaining Police Report 6. The 1st Defendant is being sued as the driver of the motor vehicle in issue 7 The 2nd Defendant is being sued as the insurer of the motor vehicle with Registration Number BP 5606 Toyota Carina Saloon under Certificate of Insurance Number 430558711 issued on 27/12/2015 and expiring on 22/12/2016. WHEREFORE, the Claimant now claims. (i) General damages for negligence (ii) Damages for loss of amenities of life (ili). MK6,000.00 being special damages (iv). Costs for this action Uizondi Mhango Vv isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHC 2.2.1he Claimant had filed a sworn witness statement. However, on the date of hearing, Counsel for the Claimant stated that the Claimant was not able to read or write as such his written witness statement would not be used. The Claimant then gave oral evidence on oath. In his evidence, the Claimant explained that he was walking on the left side of the road. Behind him, there was oncoming traffic which was 4 truck and a saloon car. The Claimant was hit by a mirror glass of the saloon car driven by the 1st Defendant as the 4st Defendant was overtaking a truck. In the oncoming traffic lane, there was a taxi coming towards him. After being hit on the left arm he fell on the road with his right leg bent and he was injured. The Claimant said the driver was in the wrong as he went on the wrong side and hit him on the left arm. There was NO cross examination. The Claimant closed his Case. 3. The Defendants’ case 3 1. The Defendants denied liability and entered a defence as follows: 1. The 2nd Defendant refers to paragraph 2 of the Claimant's statement of claim and state that they did not insure motor vehicle registration number BP 5606. The 2nd Defendant further avers that motor vehicle registration number BP 5606 does not appear in the 2nd Defendant's system. 2. Consequently the 2nd Defendant refers to paragraphs 1, 3, 4, 5, 6 and 7 of the Claimant's and makes no admission in reference thereto and accordingly puts statement of claim the Claimant to strict proof thereof. 3. Save as hereinbefore and hereinafter expressly admitted, the Defendants deny each and every allegation of fact contained in the Statement of Claim as if the same were hereinbefore and hereinafter set forth and traversed seriatim. 3.2.1he Defendants did not lead any evidence, but opted to file submissions. The submissions had not been filed by the time the Court wrote this judgement. 4. \Issues for determination 4.1. The Claimant has indicated two main Issues for determination, namely; i. Whether the Defendants are liable in negligence, and Mzondi Mhange ¥ Isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHG i, Whether the Claimant is entitled to compensation. 5. The Law and Analysis of the Facts and Evidence 5 1.1\t is an established fact that in civil matters the burden of proof is on the Claimant or the person who is seeking to prove the matter, and that party must prove the claim on a balance of probabilities, see Robins Vv National Trust Co. 1927 AC 515. \f the burden is not discharged, after both parties have adduced their evidence and, then the decision must be against him who was asserting the affirmative, See Pickup v Thames Insurance Co. (1878) 3 QBD 594. lt is imperative therefore, that the Claimant herein must, by adducing evidence, prove his claim and discharge the burden of proof on a balance of probabilities. 5 2. This claim arises out of a tort of negligence. Negligence has been defined as a violation of the duty of care, which Is fixed by the common law as the care that a reasonably prudent man would exercise In any given set of circumstances, SEE Bussily v Car Hire Ltd and Another [1995] 2 MLR 521. in a claim for negligence 2 claimant has to prove that the defendant owed him a duty of care, that the defendant breached the duty of care and that the result of the breach caused the claimant to suffer injury. 5.3. This case involves a claim against a driver of a motor vehicle, who Is alleged to have caused the injuries of the claimant because he is said to have breached the duty of care by driving negligently. It was held in the case of Banda and others v ADMARC and another 13 MLR 59 at p 63, where Banda J, as he was then stated that, “a driver of a motor vehicle owes a duty of care to other road users not to cause damage to persons, vehicles and properly 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, and observes traffic signs and signals. A pedestrian also owes a duty of care to the other road users to move with due care’. Mzondi Mhango v Isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHC Therefore, where a driver of a motor vehicle breaches the duty of care, such 4 driver is liable for negligence and any damages that may occur to other road users as a consequence of such negligence. The duty of care expected of a driver is reasonable care which a competent driver would use in the circumstances and such a driver Is expected to avoid excessive speed, keep a good outlook and observe traffic signs and signals. In the case of Banda and Others Vv ADMARC (supra) the pedestrian was held to have an equally important duty of care towards motorists and other road users. The pedestrian must at all times behave in such a manner that he does not block the flow of traffic. 6 Whether the ‘st Defendant was negligent 6.1. The Claimant states that he was hit by the 4st Defendant who was overtaking a truck at a place near Sanjemuleke. The Defendants simply denied being negligent. In his evidence the Claimant stated that he was going home and immediately being him was a truck, and behind the truck was a saloon Cal. In front of him on the right side he was an oncoming taxi. The saloon car was overtaking the truck and it hit him on the left arm with the side mirror and he fell down and injured his right leg as well. The Claimant insisted that he knew the driver who had stopped to help and had also visited him at the hospital. 6.2. The Court notes that the evidence of the Claimant does not explain the actual negligence. The Court does not loose sight of the fact that drivers can overtake other vehicles on the road, and they do so overtake being mindful of all other road user including cyclists, pedestrians, stationary vehicles, oncoming traffic, etc. The Court also notes that when a vehicle Is overtaking another, there is inevitable acceleration so that the overtaking vehicle attains a speed which is faster than the one being overtaken. 6.3. In this case, there is no evidence to show what speed the overtaking car was driving at, and in what speed zone the 4st Defendant was driving. There is no evidence to show the condition of the road or what time the accident occurred. Further, there is no evidence to show where the Claimant was walking in relation to the road, bearing in mind that the Claimant, as a pedestrian, also has a duty of care towards other road users. Again, there is no indication of how far | | a2 Mzondi Mhango ¥ [Isaac Mwangwazu and Another Ci the oncoming taxi Was for ne dered as part report been ten therein. AS established the times are not substantiated. cklist the Claimant had stated he would call A witnesses apart at the hearing it was only the Claimant W rious matters. The tendency of not rom the claimant/victim is detrimental to any ookers, medical personnel, ce. The Court k and use in ho gave evidence. 6 .4.in the pretrial che calling from himself, put y cases are vefy S© Personal injur s to testify apart f t cases the evi to establish the deg ch evidence to pic st clearly present th other witness ase. In mos dence of onl claimant's © ree of negligen cers, etc, is crucial traffic offi ition of guessing whi should not be put in a pos the filed documents before it. The claimant Mu that he or she is relying on to prove the case. ery weak. This can g that the doctrine of res ipsa loquitur ¢ the accident Was unknown. A look at octrine of res ipsa loquitur was not ely on it, see Chidzamkufa V. jal Series. It essential that e evidence e Claimant herein is V be seen from the submissions where Counsel 's purportin should be invoked because the cause the statement of pleaded. The Claimant cannot therefore | wi Ltd (No.2) 2008 (MLR) Commerc y on the doctrine of res ipsa 6.5. The case of th case shows that the d Nedbank Mala the party who wishes to call the aid of and rel loquitur must plead the same, to accord the oth themselves i | or even explain the circumstances giving rise to the invocation of er party a chance to defend the doctrine of res ipsa /oquitur. aa Claimant has argued that the speed at which the 18 D a ened from the circumstances. This would be ae —e e visibill Claimant Soo oetene ce ee otis; ‘ees Rea place : Neen ay through counsel has cited _ been presented in evidence. The ee inti thes Meee: Fesrehe with es authority. but has failed to give evid ant personal injury cases, each wase tr SS Ee | stn must be treated and decided ones en n . Is Mzondi Mhange ¥ Isaac Mwangwazu and Anether Civil Cause No 405 of 2017 MzHC for the growth of jurisprudence and precedence, but the central facts of a CaSe helps the Court make appropriate findings and orders. 6.7. The law requires that a claimant, who is alleging that the defendant was negligent, must discharge the burden of proof; proving by evidence that the allegation is true. The burden of proof is fixed at the beginning of the trial by the pleadings. Indeed, the defendant has no obligation to prove anything. In this case the fact that the Defendants did not lead any evidence does not do away with the fact that the Claimant herein has failed prove that the ‘st Defendant was negligent on a4 balance of probabilities. 7. Whether the Claimant is entitled to damages and compensation 7-1 \t is trite that when a claimant has proven on a balance of probabilities that a defendant was negligent and had breached a duty of care, the said claimant must show that the personal injuries and loss which he had suffered as a result, gre attributed to the negligence of the defendant, see Kadawire v Ziligone and Another [1997] 2 MLR 139. 7.2\n the submission filed by the Claimant, the Claimant makes reference to a police report and a medical report, yet these were not tendered as part of the evidence in this matter. These particular pieces of evidence were referred to and attached to the written and sworn witness statement of the Claimant, which Counsel for the Claimant decided not to use on account that it would be unfair to do so since the Claimant could not read or write. This Court noted that while it is understandable that the written and sworn witness statement could not be part of the evidence because the Claimant did not write or sign it, it is absolutely not acceptable that the Claimant failed to tender evidence that was attached to that statement. The written statement was inadmissible together with the attached evidence. It was imperative therefore that Counsel, when leading his witness would have ensured that the attached evidence was tendered before the Court. It is the finding of this Court that it is not proper that Counsel only referred to the said medical and police report in the filed submissions. 7.3.70 that end, this Court will not be able to use or © documents as they were not presente ven acknowledge the | d as evidence before the Court. Consequently, this Court find that Counsel for the Claimant did not prosecute Mzondi Mhango v Isaac Mwangwazu and Another Civil Cause No 105 of 2017 MzHC this matter with the diligence it deserved, in that counsel failed to properly examine the Claimant, who was the sole witness, in order to get all the material facts that are necessary to determine the case. Further, failure to call witnesses was also detrimental to the case of the Claimant. 7 4 There is no evidence before this Court to support the claim articulated in the submissions. In his evidence in Court the Claimant stated that he was injured on the left arm. There is no articulation of injuries on the head or dislocation of the patella (right leg) as outlined in the statement of claim. The reference in the submissions that the Claimant came to court using a walking aid, (clutches) does not prove that the use of the same walking aid stemmed from the alleged injury herein. It is the finding of this Court that the Claimant has failed to prove on a balance of probabilities that he suffered loss and damages, pain and suffering and loss of amenities of life. 7.5. The Claimant, having failed to make a case on the balance of probabilities against the 1st Defendant, has corollary failed in his claim against the 2nd Defendant, who was the alleged insurer of the said motor vehicle. 8. Order as to Cost 8.1. Costs normally follow the event, but in this case each party will bear its own costs. lt is so ordered. Made and delivered at Mzuzu this 24th day of September 2020