Matiya & Anor. v Prime Insurance Company Limited & Anor. (Civil Cause 473 of 2013) [2017] MWHC 84 (15 June 2017)

Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO 473 OF 2013 BETWEEN MIKE MA TIY A ............ .............................. ................ 1 PLAINTIF F ST FANNY CHIMBALANGA .................. ........................... ND PLAINTIFF AND PRIME INSURANCE COMPANY LIMITED ............... DEFENDANT 8T GILBERT MISACHE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ND DEFENDANT ...... ... . . . . . . . . CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Khan, of Counsel, for ihe Plaintiffs Mr. Tandwe, of Counsel, for Mr. 0. Chitatu, Court Clerk the Defendants Kenyatta J. Nyirenda, Introduction JUDGEMENT The Plaintiffs commenced they sustained number BQ 3769 Toyota Dyna Pick-up Dyna"]. The Defendants in a road traffic accident deny liability. this action claiming damages for personal injuries that involving motor vehicle registration [hereinafter referred to as the "Toyota Pleadings were at all material times lawful passengers in the Toyota Dyna which as set out in the Statement The of Claim, is as follows. The case of the Plaintiffs, Plaintiffs by the 1st Defendant under was insured from 4 for the period 2012 to 3 th January certificate rd April 2012. The 1st Defendant of insurance number 10475597 is being Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, 148 of the Road Traffic Act as the insurer and/or was at all material to section sued pursuant Dyna. The 2nd Defendant Toyota Dyna . . On\F or about 1th March 2012, the Toyota Dyna was being driven by the 1st Defendant at or near Machinga Trading Centre heading it overturned from the direction times the driver of Liwonde towards once. of the Toyota owner of the Ntaja and upon arrival It is alleged Defendant. that the accident was solely caused by the negligence of the 2nd The alleged negligence has been particularized as follows: "a. Driving at an excessive speed in the circumstances. b. Driving without due care and attention. c. Failing to have any or sufficient regard of the safety of the Plaintiffs. d. Failing tQ slow down or stop or in any way control the said motor vehicle so as to avoid the accident herein. e. failing Generally, to observe road traffic rules and regulations. ". of the accident, loss and damage as particularized that, as a result It is further alleged and suffered of Claim concludes Statement for pain and suffering, damages damages for disfigurement, and medical procuring police with a prayer wherein (b) damages for loss of amenities injuries the Plaintiffs in the Statement sustained of Claim .. The claim (a) the Plaintiffs of life, ( c) for in the sum of K12,000.00 (d) special reports and damages ( e) costs of the action. and that the 2nd Defendant with the 1st Defendant of Defence, the Defendants By its Statement insured of the· Toyota Dyna. Save for the foregoing all other allegations further pleads Toyota Dyna to the maximum liability contained between that its liability, of fact contained and the said owner. if any, is limited in the Statement admit that the Toyota Dyna was was driver and/or the Defendants admissions, of Claim. to indemnifying The 1st Defendant the owner of the in the contract itself owner of insurance traversed Burden and Standard of Proof It is trite that a plaintiff lawsuit: see Commercial (SCA). It is also commonplace probabilities. In Miller said: of his or her has the burden of proving the elements MLR 43 Bank of Malawi v. Mhango [2002-2003] of J. of proof is that on a balance 2 All ER 372, Denning [1947] that the standard of Pensions v. Minister Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, "That degree is well settled. high as is required 'we think it more probable equql it is not. " It must carry a reasonable in a criminal case. If the evidence than not' the burden is discharged ty, not so degree of probabili can say; is such that the tribunal , but if the probabilities are so than not: In Jh0rt, this means that a plaintiff more likely Cause No. 717 of 1991 [unreported], of Janet 2005 and Alfred Pensulo and Hastings Insurance v. Prime Insurance George) must prove a fact by showing See also the cases of B. Sacranie Mr. Lipenga is v� ESCOM, Civil (Administrator of the Estate that something Company Ltd, Civil Cause No. 1386 of Mawerenga v. United General Company Ltd, HC/PR Civil Cause No. 592 of 2015. follows that in the present who have asserted It, therefore, as the parties probabilities accident ESCOM, supra, that they sustained injuries case the burden the affirmative and suffered of proof is on the Plaintiffs to prove on a balance of of the damage as a result v. see B. Sacranie of the Defendant: which was caused by negligence wherein Villiera J had this to say: except "It is important Defendant is, therefore negligent. loss suffered' to observe perhaps , not sufficient He must prove further that the burden of proof never shifts from the Plaintiff where the Defendant to the contributory It negligence. was merely to prove that the Defendant which caused the har,rz or that it was that negligence for the Plaintiff has pleaded . Evidence The 1st Plaintiff statement testified on behalf of the Plaintiffs. as his evidence in chief. The witness statement He adopted is reproduced his witness below: "2. I am one of the plaintiffs in this matter and I make this statement on my own and on behalf of FANNY CHIMBALANGA, the 2 nd plaintiff herein. behalf 3. On or about Jih March 2012 at about 09:00 hours we were on board of motor which was being registration from the direction vehicle driven or near Machinga the said vehicle in the said motor vehicle hand side where it overturned swerving once. number BQ 3769 Toyota Dyna Pick-up heading Centre the driver which he failed towards of the said vehicle to negotiate consequent of Liwonde Trading Ntaja when upon arrival negligently a corner which resulted at drove to the left hand side and went back to the right 4. Police investigations of the said vehicle reveals of the driver copy of the police report marked as "MM 1 ". that the said accident was caused by by driving at an excessive speed. I exhibit the negligence a hereto 5. I repeat paragraph 5 hereof was solely indeed driving the said vehicle caused by the negligence and state that I also believe of the driver at a speed excessive of the said vehicle that the said accident in that he was that is in the circumstances, Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, to negotiate a why he failed he could have managed to negotiate herein. corner. Thus, if he was driving speed at a reasonable the said corner and avoid the accident 6. Further, I believe that the said driver without had no regard for our safety that is why he due care and attention and in total wanton the said vehicle of road traffic rules and regulations. There is, therefore, no doubt that was driving disregard the said accident was caused by the driver of the said vehicle. 7. The said motor vehicle was insured nd defendant by the at the material time of the accident. I sustained of the said accident, to wit, multiple personal injuries, process deep cut on the upper lip, cut on the ear lobe and orbiting of where I I was taken to Machinga blood On the other hand, on the bruises 8. As a result bruises, right eye. Consequently, received of suturing treatment transfusion Fanny Chimbalanga right forearm, posterior She was also taken to the same hospital the ankle. of debridement, reports and back slab. I exhibit marked as "MM 2 (a)" and "MM 2 (b)" respectively. and analgesics. deep cut on the foot, multiple bruises on the whole right leg and dislocation of treatment where she received copies hereto Hospital of the said wounds, sustained massive and I was also given antibiotics and debridement of our medical District suturing 9. I repeat and state that we are in this predicament which was caused by the negligent motor vehicle. It is against due to the driving of the of the driver this backgr ound that we 8 hereof paragraph accident herein defendant's commenced compensation sum of MK 12, 000. 00 to procure insured the present for personal proceedings injuries we sustained against the defendants and we had to incur the reports. herein and medical claiming the police I 0. I therefore damages ask this Honourable in the statement Court to find in our favour and award us " of claim. as sought The 1 tendered st Plaintiff were marked as Exhibits the police Pl, P2 and P3 respectively. and the two medical report reports and these the 1 stated st Plaintiff the that he could not remember who were in the Toyota Dyna but they could have been Tandwe drawing Upon Counsel During cross-examination, exact number of people around five or six people. to Exhibit st Plaintiff stated happened that he did not personally Pl which shows that there were twelve stated people that he would go by the number stated that he was with them in the Toyota Dyna. the witness's in the Toyota Dyna, the in the Exhibit. in the Toyota Dyna. It just know all the passengers He further attention When asked to give details the Toyota Dyna at Liwonde. it be set out in full: is necessary that the 1 about his trip, The Q and A that ensued st Plaintiff stated that is he boarded thereafter is relevant and it Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, "Q: What were you going to do in Ntaja? A: I was going to see my friend at Ntaja Q: The other passengers were also going to Ntaja market to do business? A: Yes Q: You were all fee-paying passengers? A: No! Q: Was it a fare paying car? A: I only requested to be given a lift and I did not pay any fare Q: How about the other passengers? A: I do not know. I can only talk about what I did Q: The Police Report states that there were also 20 bags of rice A: That is correct" The Defendant Officer. statement paraded one witness, Tamikani Mhone, the Defendant's Claims in chief. The witness as his evidence He adopted his witness statement is very brief anci the substantive part thereof reads as follows: "6. The defendant insurance is an insurance cover to its customers. company whose main business is to provide 7. On or around 81h May 2013 the plaintiffs for damages for personal motor vehicle involving registration injuries defendants accident up on the alleged Insurance. basis that the said motor vehicle against this action commenced as a result the road of an alleged number BQ 3769 Toyota Dyna Pick by Prime was insured 8. At the time of the accident, did not but the policy Insurance "TM 1" a policy the motor vehicle in question cover passenger liability. was insured hereto I exhibit by Prime marked document from our records attesting to this arrangement. 9 In the circumstances, we have no basis for confirming accident put by the plaintiffs " plaintiffs. and the defendant denies of the the allegations by the as claimed liability Mr. Mhone tendered marked as Exhibit D. the policy document in respect of Toyota Dyna and it was Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta Nyirenda, J. During cross-examination, to process claims, serve the company profits among other things. holder and the policy fm the company. Mr. Mhone stated that his duties as a Claims Officer are is to He also stated that his primary obligation interest is to maximize but his primary to the accident, Turr{ing of the accident of the accident. Defendant when the accident He also confirmed at the time of the accident. Mr. Mhone confirmed at the scene took place and that he does not know the cause that he was not present that the Toyota Dyna was insured with the When questioned the details contains or the driver. holder form to court. report about the accident report of how the accident Mr. Mhone confirmed form, Mr. Mhone stated that the form occurred and it is filled by the the accident that he had not brought policy testimony for hire or reward, regarding Exhibit D was that it only excludes meaning that not all passengers Mr. Mhone's passengers quizzed reward", passenger explained of the term Khan on his understanding by Counsel for hire is a fee-paying he stated that a passenger without who is conveyed for reward is a passenger the Exhibit that the primary cover under D is carriage liability for When are covered. "passenger for hire or passenger a whereas fare. He paying a of goods. Mr. Mhone was not re-examined. Determination The case of Blyth v. Birmingham statement is famous for its classic made the following be met. Baron Alderson Waterworks of what negligence Company (1856) 11 Ex Ch 781 is and the standard famous definition of negligence: of care to "Negligence considerations doing something might have been liable reasonable precautions is the omission to do something regulate which ordinarily which a prudent the conduct and reasonable would do, or of human affairs, man would not do. The defendants which a reasonable man, guided upon those for negligence, they omitted if, unintentionally, to do that which a person would have done, or did that which a person taking reasonable would not have done" in negligence to succeed, For an action duty of care owed to him or her, (b) the duty has been breached, of that breach see Donoghue (1932) Ziligone AC 562 quoted with approval he or she has suffered loss and damage: 2 MLR 139 at 144. the plaintiff and Another [1997] must show that (a) there was a by Ndovi, J, as he then was, in Kadawire v. and ( c) as a result v. Stevenson Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, In Banda and Others v. ADMARC and Another as he then was, stated follows: [1990] the duty of care owed by a driver 13 MLR 59, Banda, J, to other road users as owes a duty of care to other road users not to cause damage of a motor vehicle vehicles and property care which an ordinary "A driver to persons, reasonable circumstances. speed, keeps a good look-out, of anyone on or adjoining the road He must use under all the would have exercised who avoids excessive skillful driver A reasonably skillful driver has been defined as one " traffic signs and signals. observes evidence considered in the Toyota Dyna swerving I have carefully unchallenged the Toyota Dyna at an excessive this resulted side and then back to the right-hand 2nd Defendant a reasonable and avoided is, therefore, my the part of the 2nd Defendant. had driven skillful driver, the accident. Clearly, finding that the accident the evidenced adduced is that the 2nd Defendant was at the material speed such that he failed to negotiate by the two witnesses. The time driving a comer and side to the left-hand Had it been that the from the right-hand side where it overturned. the Toyota Dyna at a reasonable speed, he would have managed to negotiate negligent the 2nd Defendant was of as is expected the said comer in his driving. It of want of care on Accordingly, was caused as a result the 2nd Defendant must be held liable. st Plaintiff injuries testified and Exhibits sustained In his evidence, the 1 2nd Plaintiff thereof. went unchallenged. as a result of the accident. It is, therefore, P2 and P3 were tendered as a result injuries my finding that the Plaintiffs as proof of the accident sustained injuries The fact that the Plaintiffs sustained that as a result of the accident he and the or otherwise I now tum to the liability the Toyota Dyna was at the time of the accident st Defendant, that paragraph referred D [Hereinafter clause clause The limitation passenger liability. in Exhibit provides however, contends of the 1 There is no dispute st Defendant. that The . Defendant. insured as to Use" ( c) of the "Limitation by the 1 st to as the "limitation clause"] excluded as follows: as to use: "Limitation (c) Use as a goods carrying vehicle excluding the carriage of passengers for hire or reward" Khan submitted that considering that the limitation clause Counsel passengers liability were only accorded in respect for hire or reward only, then it cannot be said that Exhibit of passengers generally. a lift by the 2nd Defendant, they do not fall within He further relates to D excludes argued that as the Plaintiffs the meaning Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, for hire or reward. were covered In the circumstances, Counsel Khan contended does not clause D and the limitation under Exhibit of passengers that the Plaintiffs affect their claim . . On his part, Counsel Tandwe submitted Dyna as passengers liability for such passengers clause. His argume for hire or reward as was stated was excluded under Exhibit in the police report and D by the limitation nt on this issue was put as follows: that the Plaintiffs boarded the Toyota of insurance accorded liability to motor vehicle for passengers. "The policy Dyna Pick Up excluded defined as any passenger person the right to be carried exercised. beyond the bounds of mere social AC 301." for hire or reward has been in cash or kind which gives a who makes any payment either or not that right is of whether is organized in a way that goes v Motor Insurer's if the journey Hire or reward takes place See Albert on the vehicle, regardless Passenger kindness. registration number BQ 3769 Toyota Bureau (1972) Tandwe also contended Counsel the Plaintiffs Act. This meant, in his opinion, contract. were carried in contravention of section that the Plaintiffs It may not be out of place to quote the contention in full: 75 (2) of the Road had thereby entered that as the Toyota Dyna had no passenger cover, Traffic an illegal such vehicle unlesSJ permit 75 (2) of the Road Traffic to be used on any road any vehicle "Section permits hire or reward, is a road service the carriage of K200. 00 and to imprisonment to carry passengers vehicle had no passenger therefore of passengers in force authorizing for hire or reward, it has to be licensed cover. Act stipulates that "any person who uses or causes or for there which plies for hire or carries vehicle, as a public and unless passengers is duly licensed such vehicle to ply for hire or to be used for shall be liable clearly for six months". This and authorized for a first offence to a fine shows that in order for a and to carry passengers were carried on the said vehicle The Plaintiffs Road Traffic Act thereby a vehicle contract. Supreme action that was not authorized In the case of Chupa vs Malawi Hotels Court made it clear that with respect by any party in reliance may be brought an illegal entering in contravention to section They knew that they were boarding into an illegal They entered SCA 12 MLR 226 the Malawi Limited to a contract prohibited by statute, contract. to carry passengers. on an illegal " contract. 75 (2) of the no considered I have carefully for hire or reward. defined by Exhibit The expression D. In the premises, clause. ''passengers recourse It excludes for hire or reward" has to be had to decided of passengers has not been cases. carriage the limitation my research Despite My resort point in our local jurisdiction. I have been unable to English into the matter, on this to find an authority but I useful cases has proved Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, deem it enough to examine three of the most relevant cases, The Zurich General Accident 579 [Hereinafter referred to as the "Bonham's Case"], Coward v. Motor Insurers (1971] 2 A )Jureau (1962] 1 All ER 531 and Albert vs. Motor Insurers' Bureau ll ER 1345 . Co Ltd (1944] 2 All ER & Liability namely, Bonham v. Insurance In Bonham's Case, the court had this to say: contends " ... The claimant after driving the word "for". It suggests that which but for the reward would not be done. something payment. something that a man is not driving a voluntary he accepts is being for hire or reward merely In my view, great importance because attaches to reward, done in order to obtain place and A says "I will do it if you for reward. There is case of carrying agreement. The second i_s said as to payment, Take three cases. If A is asked to take B to a certain will pay me 1 s. 2d. " and B agrees, there is a typical an express it, " but nothing make a reasonable payment an implied obligation. happen. into town. Can I give you a lift?" and B accepts, thanks for that reward. He got a reward, stipulated A and gives him a shilling, for it and doing what is just as much a contract ought to be inferred. It is understood he did in order to get it. it cannot contract If one gets into a taxi, there is never any agreement that you agree to pay the legal fare. as an express about what is going to If A says to B "I am going gets in, is taken into town, gets out, case: A is asked to take Band he says "Yes, I will do but the circumstances are such that a promise to and Then there is an implied contract, a legal It creates contract. be said that A was carrying for that shilling, true. To my mind, that is not the same thing as I The results towards or contribution of any other view would really driving expenses, be startling. or anything By accepting of that sort, the driver would at a voluntary payment the cover of this policy; once (i) step outside 35 (J) for using a car while not insured guilty of an offence in that he was using a motor vehicle of a public Those are startling licence, of accepting vehicle results a voluntary service in accordance payment withs. 36; and. (iii) on the road not being the holder case. he would be as in Tyler's a lift. " somebody in breach of s 67 -for example, (ii) he would be guilty of an offence under s for giving Bonham's the essence Case held, among other matters, of carrying express thus: for hire or reward and it put its reasoning that agreement, or implied, is are three cases which seem to me to go far towards neither and friends to a certain There two ladies, of which had a road service establishing a Miss Cross and Mrs Plume, separately "There The first in Newell v Cross. hired taxicabs, drive themselves her friends arrangement with Cross had made an antecedent pay her share of the fare. Mrs Plume had made no such arrangement, though friends in fact subsequently taxi cabs licence as an express and back for 14s in each case. Miss offered to pay and did pay their shares. some of her the that each of them should who questioned as to the the passengers destination On the journey were stopped to carriage, by a police officer that proposition. Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, with causing for payment. He did not caution and the drivers when there were not in force licences arrangement charged carriages justices anc{ had no reason to know, that the passengers Court held, at p 632: all the summonses dismissed and expressly with permitting them. The result was the hirers to be used as express were the taxicabs authorizing them to be so used. The found that the drivers were sharing the fares: did not know,. the Divisional in a motor vehicle they were "carried ' ... that since there was in is C. 's case antecedent contract their shares in consideration them," and therefore hire or reward at separate and Miss C. was therefore by Mrs. P. justices had erred in law in dismissing fares," and was brought guilty of the offence charged. the charge against the drivers. were right in dismissing was to be "deemed to be a vehicle within the . . . the vehicle In the absence definition the charges carrying of "express of an antecedent her. Nor could it be said that they for ... contract of made by passengers carriage" for payment by the other passengers of separate payments against I only want to read two or three quite short passages. Lord Hewart LCJ, dealing with Miss Cross's case, at p 639 ([1936} of 2 All ER at p 205): The first one is in the judgment 'Clearly, collect, concerned therefore, it was in her mind that she was to collect, contribution from each one of her fellow passengers. to So far as she was and apparently was entitled a rateable that case seems to me, as the law stands, clear. Then on pp 641, 642 ([1936} 2 All ER at p 206), he contrasts the position of Mrs Plume: 'On the other hand, by way of contrast that contributory indicate Non constat or bargain. contract ... subsequent and voluntary to the case of Miss Cross, there is nothing to satisfactory payments were contemplated at the outset or formed any part of a with regard to each of those payments that it was not both And he approves the dismissal her. of the summons against Du Parcq J put the point extremely clearly at p 644: case, which is the only one presenting of fact as a whole, that 'In Mrs Plume's the findings between agreement, none of her fellow be guilty of unlawfully or implied, passengers causing the justices passengers and she was herself solely being bound by contract a vehicle Mrs. Plume and her fellow express were not satisfied before to be used as an express ' carriage. the journey started. responsible to contribute for the payment a share, If there was no such of the fare, then she would not any difficulty, I am of opinion, looking at that ther(! was any agreement I have some diffidence was a decision called in question. contribution 4: in referring to McCarthy v British Oak Insurance Co, because it of my own, but it is some six years ago and so far as I know has not been with similar There I was dealing type of case, where a certain had been made to the driver of a car. I need only refer to these words, at p 'I think that what is intended genuine stipulated one must look at all the circumstances. contract a stipulated business reward, to be excluded for hiring, something by this policy which is a real hiring, [the same words} is something which is for a here. I think a doing something quid pro quo. I do not think that there was any hiring Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta Nyirenda, J . to deal, a carriage I have got these findings for hire, or were these that they were never They negative for hire or reward? On that particular in the case with which I have a carrying nature of the payment ... Was there, being carried people asked for payment, would have carried would have been going on the particular agreement. the voluntary implied the driving? obligation to pay. Thirdly, with the object of getting propositions. voluntary the voluntary about that. What is the relevance unless my judgment, occasion: .. of that having you can extract there was no agreement. the claimant The mere fact that Cunningham of the carriage. any payment. character payment First, offered money, and that the claimant that two of them voluntarily them, as he did Drage, even if they had paid nothing; Those findings any payment. with the object journey in any event. of getting and exclude throughout They affirm and the car negative day, what was the legal position That is clear. between Secondly, Clement the parties during there was no legal was not taking either The findings establish and Clement when they got home at night or when they got to works does not affect or Cunningham all those three to make a may have intended That is Newell v Cross. There is a plain decision an implied happened promise many times before? None, in to pay on this particular agreement, express or In Coward v. Motor Insurers Bureau, supra, the Court observed as follows: "for hire" and ''for "The expressions years to express either undertakes a common carrier reward" consideration have been used indifferently for very may of goods or passengers the monetary or by reason by virtue of his common law status " to carry goods or passengers on a journey. for which a carrier of a special contract as supra, ' carried arrangement were of the simplest. The facts in Albert v. Motor Insurers' docker worker, regularly when they were working understood accident occurred was a passenger plaintiff to satisfy the judgement claiming Bureau, to and from work in his car fellow dock workers It was a regular and in the same dock as himself. in cash or kind. An that they should pay him something worker who a fellow docker was killed. The of the arrangement, damages Q failed an action the Respondent in which the plaintiffs in the car in pursuance against Q and the plaintiff and was awarded brought the full amount of the damages husband, and costs. and costs. an action brought Q, a Q had been bound to insure against passenger was whether The question on the basis that his car been "a vehicle or reward" reward" contractual relationship Q and his fellow dock workers. Willis connoted J. held that Q had not been bound, on the ground that "hire or a reward payable under a legally bidding had been intended from the to result The Court of Appeal affirmed no and that contract arrangement between . his decision in which passengers are carried liability for hire On appeal by the plaintiff, the House of Lords, allowing the appeal, held that: Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta Nyirenda, J. are carried in which passengers " 'a vehicle in which passengers any vehicle meaning time of the occurrence arrangements between friends carrying whereby one agreed to give the other a lift in his car for a particular purpose, the other contributing towa were in fact being carried of an event giving rise to a claim; the phrase for hire or reward at the would not cover a vehicle a passenger on some isolated for hire or reward' could not be construed occasion, nor social as •was whether bounds of mere social 'business there had been a systematic kindness, rather ' arrangement ie whether the carrying had become a predominantly one ... " than a predominantly social ses of rds the expen carrying the journey; the test to be applied of passengers which went beyond the from the above-mentioned even on one isolated for hire or reward makes it a vehicle the use of a vehicle passengers for hire or reward. Secondly, cases are the following occasion for the in which for someone to qualify as a he or she must pay a fare for being conveyed in the by being given a lift in a vehicle is carried Firstly, of carrying are carried for hire or reward, Consequently, What I am able to distil principles. purposes passenger passenger vehicle. or on social called hire or reward is a question whether there is a legally a passenger arrangements binding where a person between is carried for hire or reward. Thirdly, whether for of fact the answer to which does not depend on a passenger friends, such a person would not qualify to be contract only excluded that the expression liability for hire or ''passenger for fee-paying cannot be sustained. If that were the intention, to define or qualify the type of contention The Defendants' to all passengers clause case, the limitation In the present passengers. extends reward" clause the limitation passengers clause are excluded. clause in the manner being suggested mean one thing and one thing only, a fee-paying it would be utterly In the premises, would not have gone further it was excluding. meant to define or qualify the type of passengers The words ''for hire or reward" in the limitation wrong to interpret that are being the limitation by the Defendant. can only The expression passenger. generally, In any case, if the framers of Exhibit passengers effect with clarity the wording of the limitation clause the carriage and directness. of passengers ". liability for to that I have no doubt that they would have used wording D had intended to exclude To illustrate my point, with "use as goods carrying you only have to compare vehicle excluding At the end of the day, the all-important whether in the Toyota Dyna. or not the Plaintiffs question paid a fee or fare in respect that the Court ought to ask itself of their respective is carriage The 1st Plaintiffs Dyna. In fact, this evidence testified that he did not pay any fare to be conveyed in the Toyota was not challenged. It will be recalled that the only Mike Matiya & Another v. Prime Insurance Company Limited & Another Kenyatta J. Nyirenda, for the Defence, Mr. Mhone, simply affirmed witness present when the Plaintiffs know the agreement that was there betwee to this Court that he was not the Toyota Dyna and that he does not s and the z n the Plaintiff were boarding nd Defendant. that the carriage of the Plaintiffs in a way that went "beyond the bounds of mere social Tandwe that "the Plaintiffs in the by Counsel the assertion Furthermore, was led to establish Further, no evidence Toyota Dyna was organized kindness". boarded police report" is not borne out by the evidence. (the Police and searched or any other passenger the Plaintiffs did not bring any evidence in the said vehicle. It is, therefore, "passengers for hire or reward". Report) the Toyota Dyna as passengers for hire or reward as was stated in vain for a statement therein I have read and read Exhibit to the effect that had paid a fare. Simply put, the Defendants in the P 1 to show that the Plaintiffs were fee-paying my finding that the Plaintiffs passengers were not All in all, having found that the accident of the z Defendant and again having found that Exhibit D did not exclude respect of the Plaintiffs, liable to compensate accident. must be held that the Defendants for the injuries that they sustained by the negligence it goes without the Plaintiffs was caused saying m the in liability nd Conclusion and by reason for the occurrence of the foregoing, of this accident I find that the z in that he was negligent in his nd Defendant was of the Toyota Dyna. I, accordingly, enter judgment in favour of the the Defendants, with costs, and order that damages be assessed In the premises responsible driving Plaintiffs against by th� Registrar. Pronounced in Court this 15th day of June 2017 at Blantyre Malawi. in the Republic of Kenyatta JUDGE Nyirenda 13