Mukha v Symon (Personal Injury Cause 244 of 2014) [2018] MWHC 1274 (4 April 2018)

Mustafa Mukha v. Jack Symon & Prime Insurance Company Limited Kenyatta Nyirenda, J. IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO 244 OF 2014 BETWEEN MUSTARBA MIDIKA. 6 scission ones sis ais 0x wa sonaacs we wa oa ss wa eee asia wa an oe a CLAIMANT AND JACK. SYMON, sasscssssssconnssssasesassescinnsssvatssanatednxetetnesemnenrensenes . 18? DEFENDANT PRIME INSURANCE COMPANY LIMITED ..................4. 2’? DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mr. Mussa, of Counsel, for the Claimant Mr. Stenala Chisale, of Counsel, for the Defendant Mrs. Jessie Chilimapunga, Court Clerk JUDGEMENT Kenyatta Nyirenda, J. This is an action arising from a road accident in which a motor vehicle registration number TO 6059 Toyota Hiace Minibus (Minibus), allegedly driven by the 1* Defendant and insured by the 2™ Defendant, hit the Claimant. The Claimant alleges that the accident occurred due to the negligence of the 1* Defendant and that he sustained injuries as a result. The Claimant claims damages for pain and suffering, damages for loss of amenities of life and damages for disfigurement. He also claims special damages and costs of the action. The Defendants contest the action and, accordingly, a defence was filed. The Defendants deny each and every allegation of fact contained in the Statement of Claim. The 2"! Defendant also pleads, without prejudice to the above-mentioned general denial, that its liability, if any, is (a) subject to the owner of the Minibus (if he is proven to be the 2™ Defendant’s insured) being found liable for the Claimant’s injuries resulting from the use of the Minibus, and (b) limited to indemnify the owner a. 3 Mien nr a. ar COURT 1 OR NH Tee ie tags, A Mustafa Mukha v. Jack Symon & Prime Insurance Company Limited Kenyatta Nyirenda, J. of the Minibus (if proved to be its insured) to the maximum liability contained in the contract of insurance between itself and the said owner which limit is K5,000,000.00. The Court reminds itself that, as these are civil proceedings, the required standard of proof is proof on a balance of probabilities. This is a lesser standard than that required in criminal proceedings which is proof beyond reasonable doubt. The Court also bears in mind that a party that alleges the existence of certain facts bears the burden of proof in respect of such facts: Commercial Bank of Malawi v. Mhango [2002-2003] MLR 43 (SCA). It, therefore, follows that in the present case the burden of proof is on the Claimant as the party who has asserted the affirmative to prove on a balance of probabilities that he sustained injuries and suffered damage as a result of the accident which was caused by negligence of the 1*' Defendant: see B. Sacranie v. ESCOM, HC/PR Civil Cause No. 717 of 1991 [unreported] wherein Villiera J had this to say: “It is important to observe that the burden of proof never shifts from the Claimant to the Defendant except perhaps where the Defendant has pleaded contributory negligence. It is, therefore, not sufficient for the Claimant merely to prove that the Defendant was negligent. He must prove further that it was that negligence which caused the harm or loss suffered” The one and only witness for the Claimant’s case was the Claimant himself. In examination in chief, he adopted his Witness Statement whose material part reads as follows: “6. I recall on the 11 December, 2013 I was lawfully cycling my pedal cycle from the direction of Nkando heading towards Mikolongwe along Robert Mugabe Highway. It was around 18:00 in the evening and I was cycling on the left far end of the road. is That when I was still in the course of my Journey I was overtaken by a minibus Toyota Hiace registration number TO 6059 which suddenly stopped ahead of me shortly thereafter. That due to the sudden stop I collided with the minibus as I had not anticipated it to stop in front me as it did. The minibus had stopped to pick a passenger. 8. That it was impossible for me to avoid colliding with the minibus as it had completely blocked my way after it had suddenly stopped. 9. After the accident I fell to the ground and I sustained a deep cut wound on the head, painful left shoulder, bruised nose and soft tissue injuries. I obtained a medical report exhibited hereto and marked “MMI” 10. The accident was also reported to the police. The police traffic officers recorded our statements. The defendant admitted to the offence of inconsiderate driving and Mustafa Mukha v. Jack Symon & Prime Insurance Company Limited Kenyatta Nyirenda, J. paid a fine of MK1,000.00 under GR411198. I thereafter obtained a police report exhibited hereto and marked “MM2”. Li. The said motor vehicle was insured by the 2" Defendant, prime insurance company limited under certificate insurance number 130071129. 12. The accident herein was solely caused by the 1° defendant by careless driving. He had suddenly stopped ahead of me without giving me any sign. 13. I, therefore, claim compensation for personal injuries MK, 3,000.00 cost of police report and MK10,500 cost of medical report; ” The Claimant tendered the medical report and the police report and the same were marked as Exhibits P| and P2 respectively. In cross-examination by Counsel Chisale, the Claimant said that the accident occurred in the evening hours but it was not dark yet and as such he was able to see the road ahead and all that was happening. He insisted that the road was straight and not sloppy. When asked to narrate how the accident happened, the Claimant stated that the Minibus came from behind him and he only noticed it when it was overtaken him. He said the 1“ Defendant did not hoot or warn him in any way. He further said that there was nothing that he could have done in the circumstances to avoid the collision because the Minibus pulled off without indicating and instantly stopped. The Claimant said that he had carried 22 litres of milk on the carrier of the pedal cycle and that the milk spilled on the road following the collision. When put to him by Counsel Chisale that it is the heavy load of milk that caused him to loss control of the pedal cycle, the Claimant stated that he is used to carrying heavy goods on the pedal cycle such as 50 kilograms bags of maize. In re-examination by Counsel Musa, the Claimant denied that the accident was influenced by the milk that he was carrying. He reiterated that there was nothing he could have done to avoid the collision since there was a very short distance between him and where the Minibus suddenly pulled to a halt. The Defendant opted to call no witnesses. For an action in negligence to succeed, the Claimant must show that (a) there was a duty of care owed to him; (b) the duty has been breached; and (c) as a result of that breach he has suffered loss and damage: see Donoghue v. Stevenson [1932] AC Mustafa Mukha v. Jack Symon & Prime Insurance Company Limited Kenyatta Nyirenda, J. 562 quoted with approval by Ndovi J., as he then was, in Kadawire v. Ziligone and Another [1997] 2 MLR 139 at 144. In Banda and Others v. ADMARC and Another [1990] 13 MLR 59, Justice Banda, as he then was, stated the duty of care owed by a driver of a motor vehicle 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, and observes traffic signs and signals.” Further, the case of Mhango v. Positi and National Insurance Company Ltd [1995] 2 MLR 402 is for the proposition that a driver of a motor vehicle has a duty to always keep a proper look out and to drive at such speed as would allow him to stop well within the distance he can see to be clear. The evidence in the present case shows that the collision occurred after the Minibus suddenly came to a stop in front of the Claimant. The 1*' Defendant made no attempt whatsoever to indicate that he was stopping. It is also clear that there was a very short distance between the Minibus and the Claimant such that the Claimant could do practically nothing to avoid the collision. In short, if the Minibus had not pulled off to a halt suddenly, the collision would not have happened. On the available evidence, I am satisfied that the way the 1*t Defendant managed the Minibus shows that he did not possess or apply reasonable skill of a driver. A reasonable driver would not have failed to (a) indicate that he was stopping and (b) make sure that there was reasonable distance between himself and the Claimant. In so doing, the 1‘* Defendant omitted to do something which a reasonable driver guided by consideration which ordinarily regulate the conduct of drivers on the road would do and by actually stopping and instantly blocking the Claimant’s way, the 1 Defendant did something which a prudent and a reasonable driver would not do. All in all, I am satisfied that the Claimant has, on a balance of probabilities, succeeded in proving that the 1*' Defendant was guilty of negligent driving and the Claimant sustained injuries as a result thereof. However, it is important to remember that the Claimant’s action is not just against the 1‘ Defendant as such. It is also against the 2" Defendant, the insurer of the Minibus at the material time. There is uncontroverted evidence before the Court that the Minibus was insured by the Defendant. Mustafa Mukha v. Jack Symon & Prime Insurance Company Limited Kenyatta Nyirenda, J. Section 148(1) of the Road Traffic Act provides that any person having a claim against any person insured in respect of any liability in regard to which a policy of insurance has been issued shall be entitled in his own name to recover directly from the insurer any amount for which the person insured is liable to the person having the claim: see also Citizen Insurance Company v. Raidhan t/a Abisons [2002- 2003] MLR 38(SCA). In light of the foregoing, and having found the 1*t Defendant wholly to blame for the accident, I hold the Defendants liable to compensate the Claimant as claimed in the Statement of Claim. Accordingly, I enter judgment in favour of the Claimant against both Defendants and order that the collateral issue of assessment of damages be dealt with by the Registrar. Pronounced in Court this 4" day of April 2018 at Blantyre in the Republic of Malawi. i a 5 O WO SS Kenyatta Nyirenda JUDGE