Mkate and Elias v Mitunde and Prime Insurance Company Ltd (Personal Injury Cause 555 of 2013) [2018] MWHC 1265 (21 May 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 555 OF 2013 BETWEEN: MECK MKATE JOHN ELIAS AND 151 CLAIMANT 2"? CLAIMANT EVASON MITUNDE 151 DEFENDANT PRIME INSURANCE COMPANY LIMITED 2"? DEFENDANT CORAM: JUSTICE M. A. TEMBO Mauluka, Counsel for the Claimants Chikaonda, Counsel for the Defendants Mankhambera, Official Court Interpreter JUDGMENT This is this court's judgment following a trial of this matter on the claimants' claim for damages for the personal injuries they had suffered due to the alleged negligence on the part of the 1%' defendant, who is the 2" defendant's insured in the manner he drove his motor vehicle resulting in the motor vehicle hitting the claimants. The claimants testified at the trial of his claim. The claimants also filed skeleton arguments in support of his claim. The defendants did not bring witnesses in their own defence but filed skeleton arguments on the legal issues in this matter. On 17" March, 2013, the claimants were walking near Berlin Private School at Bvumbwe. They were walking on the left hand side of the road in the extreme dirt verge of the road. As the claimants were so walking, a motor vehicle driven by the 1° defendant and insured by the 2™ defendant, followed them from the road to the dirt verge and hit the two claimants. The issue for determination before this Court is whether the 1% defendant as the 2™ defendant's insured was negligent in the manner he drove the minibus herein resulting in hitting the claimants herein. The standard of proof in these civil matters, like the instant one, is on a balance of probabilities. And, the burden of proof lies on he who asserts the affirmative, in this case the claimants. See Nkuluzado v Malawi Housing Corporation [1999] MLR 302 and Miller v Minister ofPensions [1947] All ER 372. The claimants have rightly submitted on the duties of a driver of a motor vehicle on the road which if breached result in the driver being held liable for negligence and the resultant damage caused by such negligence to those other road users to whom the driver owed the said duties. See Mponda v Air Malawi Limited and another [1997] MLR 132, Banda and others ADMARC and another 13 MLR 59, Chuma and another v India and others [1995] MLR 97, Somani and Mulaga v Newira 10 MLR 196 and Sagawa v United Transport (Mw) Limited 10 MLR 303. In the case of Banda and others v ADMARC and another Banda CJ stated succinctly the driver's duty of care to other road users as follows A driver of a motor vehicle owes a duty of care to other road users not to cause damage to persons, vehicles and property 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, observes traffic signs and signals. The defendants denied the allegation of negligence as stated in the claimants' evidence. The impression that this Court got from the evidence is that the claimants herein were indeed lawfully walking on the dirt verge of the road. Then, the defendant drove his vehicle off the road to the dirt verge and hit the two claimants and injured them. In the foregoing circumstances, the 1" defendant breached his duty of care to the claimants, his fellow road users, by failing to have due regard to the claimants' presence on the dirt verge of the road. This Court is therefore satisfied that the claimants have made out their case against the 151 defendant. The 2" defendant is liable for the insured's negligent driving that resulted in injury to the claimants herein. The claimants having made out the case of negligence against the defendants, this Court finds the defendants liable for negligence in causing the injuries suffered by the claimants herein. Damages shall be assessed by the Registrar. Costs normally follow the event and shall therefore be for the successful claimants to be assessed by the Registrar as well. Made in open court at Blantyre this 21*t May 2018. . A. Tembo 3