Ohan Transport Limited v Zambia Railways Limited (Appeal 89 of 2013) [2015] ZMSC 54 (10 September 2015)

, \ IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO.89/2013 BETWEEN: OHAN TRANSPORT LIMITED APPELLANT AND ZAMBIA RAILWAYS LIMITED RESPONDENT CORAM: MAMBILIMA, CJ, WOOD AND KAOMA, JJS; on the 1st day of September, 2015 and the 10th day of September, 2015. FOR THE APPELLANT: FOR THE RESPONDENT: I. M KUNDA, OF MESSRS. GEORGE MRS. KUNDA AND COMPANY MS. TIZYO BULAKA, OF MESSRS. CHIFUMU BANDA AND ASSOCIATES JUDGMENT MAMBILIMA,CJ, delivered the judgment of the Court. Cases referred to- 1. Reuben Mpundu and 3 Others v. Ohan Transport, 1997/HPj162; 2. Abraham Mohamed Transport Alantara Limited And v. SafeliChumbu (1993-1994) ZR 4; 3. Mary MusamboKunda v. Attorney-General (1993-1994) ZR 1; 4. Duly Motors (Zambia) Limited v. Patrick Katongo and Livingstone Motor Assemblers Limited (1986) ZR 61; 5. Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool)Limited (1947) AC 1; 6. Ord v. Ord (1923) 2 KB 432 at page 439; and 7. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R.172 Legislation referred to- 1. The Roads and Road Traffic Act, Cap 766 of the Laws of Zambia Other works referred to- I 1. Odgers' Principles of Pleadings and Practice, 21st Edition This is an appeal from a judgment of the High Court, delivered on 12th December, 2012, in a matter instituted by the Respondent against the Appellant, by way of a writ of summons accompanied by a statement of claim. The facts of this case are common cause. On 7th June, 1996, the Respondent's passenger train collided with a petrol tanker motor vehicle, registration number AAN 5549/ AAF 2083T, at Lukanda Level Crossing, north of Kapiri Mposhi. The tanker was loaded with petrol. As a result of the said collision, the petrol ignited and set the tanker, the locomotive engine and five coaches ablaze. The crew of the train and many of its passengers, as well as the driver of the tanker died, while many others were injured. The collision also extensively damaged a section of the railway line and destroyed the signaling equipment. The Respondent claimed that the accident was caused by the negligence of the driver of the tanker. According to the Respondent, the level crossing, where the collision occurred, was clear of any obstruction and had warning signs, including bells J2 , and flashlights, that alerted one of an approaching train. The Respondent added that the train sounded its horn as it approached the level crossing. In the alternative, the Respondent averred, in its statement of claim, that the collision was occasioned by reason of breach of statutory duty under Section 203 of the ROADS AND ROAD TRAFFIC ACT', on the part of the Appellant, its servant or its agent. The Respondent claimed general damages for the destruction caused by the collision to its locomotive engine, five of the coaches, a section of the railway line, signaling equipment and telecommunication equipment. The Respondent also claimed special damages for loss of business for the period that the railway line was not in operation as a result of the collision and for medical and related costs incurred to attend to the victims of the accident. In support of its case, the Respondent called three witnesses. PW 1 was Nicholas MALAYA,the Deputy Commander of the Zambia Railways Police. He testified, inter alia, that he went to the scene of the accident a few hours after the collision had J3 • occurred. He stated that he was able to see that the tanker had the writings "Ohan Transport" on top of its windscreen. This witness also testified that the following day, he visited the Appellant's offices in Ndola where he spoke to a Mr. Elisha MATAMBO, an accountant in the Appellant Company. According to PW 1, Mr. MATAMBO was very distraught as a result of the accident. He told PW 1 that the driver of the tanker was one of the Appellant's best drivers and that the tanker had been relatively new. PW 2 was Edwin MWALE, the Respondent's Superintendent for Carriage and Wagons. He testified that the value of the coaches that were damaged in the accident was US$ 370,000.00 and the locomotive had a value of US$870, 000.00. PW 3, Yubya MWANAWINA,was the Chief Civil Engineer of the Respondent. This witness told the trial Court that the cost of repairing the portion of the damaged rail line was about K16 million, while the cost of repairing the signaling equipment was about K287 million. In response to the Respondent's action, the Appellant filed a defence in which it denied having been the employer of the driver J4 of the tanker that was involved in the collision. The Appellant also disputed the allegation that it was the owner of the tanker. It averred in its defence that the said driver was not acting in the course of employment with them at the time of the accident. Its witness, DW 1, Abdulrahman Nur HASSA, the Managing Director of the Appellant, told the Court below that the tanker in question had been hired from a Mr. Adam Noor. It was the Appellant's position that the accident was caused wholly or in part by the negligence of the Respondent and its locomotive drivers. DW 1 was the Appellant's only witness called in support of its case. He also told the trial Court that the Appellant had written its name on the body of the tanker but according to this witness, this was done at the insistence of BP Zambia, with whom the Appellant had a contract to transport petrol from Indeni to various parts of the country. At the conclusion of the trial, the learned trial Judge considered the evidence and the submissions that were before him. On the issue of liability for the collision, the learned trial Judge held that this issue was res judicata. It transpired that J5 . , • some of the victims of this accident had sued the Appellant in the case of REUBEN MPUNDU & OTHERS V. OHAN TRANSPORT LIMITEDll}. In a judgment delivered on 7th April, 2000, by MUNTHALI,J, it was stated as follows: that is clear the control of the defendant. "The evidence the driver was acting on the instructions of the defendant and he was driving the vehicle which was under I hold that Valentine Ambingozi was an agent or servant of the defendant. I further hold that at the time of the accident the driver was acting in the course of his duty - delivering fuel from Ndola to Lusaka. He did not deviate from his route. He was not on a frolic of his own, so to say. An employer is vicariously liable for any Tort committed by the employee in the course of employment. On the evidence before me I find that is vicariously liable for the negligence of the driver of the fuel tanker." the defendant It was in view of this finding by MUNTHALI,J that the learned Judge in the Court below found that the issue of liability was res judicata. With regard to the Respondent's claim for damages, the Court below found that there was unchallenged evidence that the cost of repairing the railway line was about K16 million, while the cost of replacing the signaling equipment was about K287 million. The Judge accordingly, awarded the Respondent a round figure of K300 million for the repair of the railway line and replacement of the signaling equipment. J6 As for the damages for the destroyed locomotive and coaches, the Court below held that the Respondent's evidence on the damages under these heads was not contested by the Appellant. It therefore, awarded the Respondent US$870,OOOfor the locomotive and US$370,OOOfor the coaches as claimed by the Respondent. Converting the said United States Dollar amounts into Zambian Kwacha, at the prevailing exchange rate at the time, the learned trial Judge awarded the Respondent K6.5 billion. Coming to the Respondent's claim for special damages for loss of business and for medical expenses, the learned trial Judge found that the Respondent did not adduce sufficient evidence to prove the said damages. It is against the foregoing judgment of the lower Court that the Appellant has appealed to this Court on the following grounds of appeal: 1. "that the learned trial Judge erred in principle Respondent K6.5 billion for the destruction of the locomotive the five coaches and K300 million for the damage destruction of, the railway line and signaling equipment; in awarding the and to, and the 2. that the Court below misdirected itself when it refused to consider the fuel tanker and the driver were the Appellant's hired from A. R Noor who had control of the driver; evidence that J7 3. that the Court below misdirected itself when it accepted hearsay evidence of PW 1 when he testified that the fuel tanker driver was one of their best drivers and the truck was relatively new; and 4. that the Court below erred both in law and fact when it accepted the letter written by the Appellant's Branch Manager asking for Police Report as a sign that the tanker belonged to the Appellant." In support of these grounds of appeal, the learned Counsel for the Appellant, Mrs. KUNDA,filed written heads of argument on 14th May, 2013, which she augmented with oral submissions at the hearing of the appeal. In support of the first ground of appeal, Mrs. KUNDA submitted that the learned trial Judge misdirected himself when he awarded the Respondent K6.5 billion for the destruction of the locomotive and the five coaches, and K300 million for the damage to the railway line and the signaling equipment. According to Counsel, the Court below awarded the Respondent damages on the basis of the prices of a new locomotive and new coaches, when the damaged locomotive and coaches were over twenty years old at the time. She contended that the calculations relied upon by the lower Court were based on replacement values and not the values of the damaged locomotive and coaches at the time of the accident. To reinforce her argument, Mrs. KUNDAreferred us to the case of J8 ( , ABRAHAM MOHAMED AND ALANTARA TRANSPORT LIMITED V. SAFELI CHUMBU(21 where this Court held that ''the general rule as to the normal measure of damages for tort is the value of a chattel at the time of the loss." With regard to the award of K300 million for damage to the railway line and the signaling equipment, Mrs. KUNDAargued that the award was not supported by any documentary evidence. According to her, all that was laid before the Court below were mere calculations of how the Respondent arrived at the figures which, in her opinion, were mere guesswork. To buttress her argument, she cited the case of MARY MUSAMBO KUNDA V. ATTORNEY-GENERAL(3) and relied on the portion of our judgment which stated that- "The plaintiff admitted that she kept no accounts and even if the learned trial judge accepted, as he did, that she used to gross K3, 000 per day, he had no evidence upon which to make an award since, obviously, only the clear profits would have been the loss suffered. The gross loss was claimed at K87, 000 but the failure by the plaintiff to adduce evidence to quantify the net loss must react against her." To further buttress her submissions, Mrs. KUNDAreferred us to the case of DULY MOTORS (ZAMBIA) LIMITED V. PATRICK . ' KATONGO AND LIVINGSTONE MOTOR ASSEMBLERS LIMITED(41, where we held that- "Wherethere has been inflation, as there has been in this country, a plaintiff who has been deprived of something must be awarded realistic damages which will afford him a fair recompense for his loss calculated at the value appropriate to the date of the award.» Coming to the second ground of appeal, Mrs. KUNDAreferred us to documents appearing at pages 53 to 55 and page 69 of the (record of appeal. Pages 53-55 show the registration documents of the tanker while the document on page 69 is the Zambia Police Report on the accident. Mrs. KUNDAstated that the tanker was registered in the name of A. R Noor and that the driver of the tanker was an employee of an independent contractor. On the issue of liability, Mrs. KUNDAreferred us to the case of MERSEY DOCKS AND HARBOUR BOARD V. COGGINS AND , GRIFFITHS (LIVERPOOL) LIMITED(51 . The brief facts of that case were that a firm of stevedores had hired, from the Mersey Docks and Harbour Board, the use of a crane together with its driver to assist in loading a ship. The contract was subject to the Board's Regulations; in particular, regulation 6 which contained the clause: "The drivers so provided shall be the servants of the applicants." The driver J10 " . I • evidence from PW1 to the effect that when he visited the Appellant's offices, after the accident, he was told by Mr. MATAMBOthat the tanker driver was one of their best drivers and that the tanker had been relatively new. On the fourth ground of appeal, Mrs. KUNDAcontended that the Court below misdirected itself when it accepted a letter written by the Appellant's Branch Manager, asking for a Police Report, as evidence that the tanker belonged to the Appellant. Counsel submitted that there was evidence before the trial Court that the actual owner of the tanker could not obtain the police report because he had no contract with B. P Zambia. In response to the submissions advanced on behalf of the Appellant, Counsel for the Respondent, Ms. BULAKA,filed written heads of argument on 26th June, 2013, which she also augmented with oral arguments in Court. Reacting to the first ground of appeal, Ms. BULAKA submitted that the calculations by the Respondent, appearing at pages 61-65 of the record of appeal, were not based on the cost of purchasing a new locomotive and new coaches. According to her, J12 .. I " the computations took into account of both the economic life and the expired life of the coaches. With regard to ground two, Ms. BULAKA'sresponse was that the issue of ownership of the tanker was decided upon in the case of REUBEN MPUNDU AND 3 OTHERS(5). She, therefore, agreed with the trial Judge that the issue of liability was res judicata. On the third ground of appeal, Ms. BULAKAstated that the Court below properly directed itself when it admitted the evidence of PW 1 on his claim that he had spoken to Mr. MATAMBO,after the accident. In the alternative, Counsel argued that the evidence of PW 1, in that regard, was res gestae because Mr. MATAMBO's statement was made shortly after a horrific accident. In relation to the last ground of appeal, Ms. BULAKA reiterated that the issue of the Appellant's liability was res judicata. We have considered the judgment of the Court below, the submissions of Counsel and the issues raised in this appeal. At the outset, we wish to commend both Counsel for the submissions they have availed us. J13 ; We will deal with grounds two, three and four together because, in our view, they all relate to the question as to whether the Appellant was liable for the collision. Thereafter, we will deal with the first ground of appeal which relates to the quantum of damages. On the issue of liability, the learned Judge in the Court below stated as follows: "In the case of Reuben Mpundu & Others v. Ohan Transport Limited, 1997/HB/161, a case in which some victims of the said collision took the defendant to Court, the issue of the defendant's liability was dealt with and resolved on the same questions that are before me. Therefore, the issue of the defendant's liability for the collision is now res judicata. Suffice it to say that my learned the petrol tanker was brother Mr. Justice S. Munthali held that under the control of the defendant and that the driver was acting on the defendant's instructions. Consequently, it was held, in that case, that the defendant was liable for that collision. Since the issue of liability is res judicata, I adopt the holding in that case. I, too, hold that the defendant is liable for the collision. Therefore, as regards liability, the plaintiff has proved its claim to the required standard." The foregoing holding, in our VIew, clearly shows that the issues raised by the Appellant, in grounds two, three and four, are misconceived. The learned trial Judge's holding on liability was based purely on the fact that that issue was res judicata in that MUNTHALl,J, had already pronounced himself on the matter. It J14 { t IS not in dispute that the action before MUNTHALI,J arose from the same accident. No evidence has been laid before us to show that the holding by MUNTHALI,J, was contested or appealed against. In our view, it would have been inappropriate for the learned Judge in the Court below to have interrogated the issue of liability again when it had already been settled by the High Court in another matter. We, therefore, entirely agree with the decision of the Judge when he refused the invitation to delve into the issue of liability in this case as the said issue had already been settled in the case of REUBEN MPUNDU AND 30THERSll). The judgment of Lush, J, in ORD V. ORDI6), contains valuable guidance on the issue of res judicata. He said, inter alia, that- court, - has been already adjudicated the plea of res judicata means. The words "... there is no difficulty in seeing what, sense, explain themselves. dispute competent therefore, equivalent nature - so high and so conclusive, is not permitted to aver against it. The litigant must admit to be the truth with regard to the dispute that he raised." in its strict and proper 'res judicata' If the res - the thing actually and directly in upon, of course by a ... An estoppel, is an admission; or something which the law treats as to an admission, of an extremely high and conclusive the party whom it affects that it or offer evidence to controvert that which has been judicially declared it cannot be litigated again. We agree with the observations of LUSH, J. We hold that the learned trial Judge in the Court below was on firm ground when he held that the issue of the Appellant's vicarious liability for the J15 t • negligence of the tanker driver had already been decided by MUNTHALI,J. The second, third and fourth grounds of appeal must fail. We, accordingly, dismiss them for lack of merit. Coming to the first ground of appeal, we do not agree with Mrs. KUNDAthat the damages awarded by the Court below, for the locomotive and the coaches, were based on the replacement values for a new locomotive and a new coach. The calculations at pages 61-63 of the record of appeal, in our view, clearly show that the Respondent took into account the fact that the locomotive and the coaches were not new at the time of the accident. The formula used to come to the cost of the present value of the coaches is clearly shown. The economic life and the expired life of the coaches were taken into account. The replacement value of the coaches was given as US$500,000 while the value of the coaches, at the time of the accident, was computed as US $370,000. The same goes for the cost of the locomotive. While the replacement value was put at US $1.3 million, the value of the locomotive, that was arrived at after taking into account the expired life, was US$870,000. A perusal of the record of appeal establishes that the Appellant did not adduce any evidence to contest these J1G calculations that the Respondent used to arnve at the current value of the damaged property. It merely stated in its defence that "any damage which may have been caused to the locomotive engine should be claimed on 'as is' basis and not on the 'replacement value'." With regard to the award of K300 million in respect of the rail line and the signaling equipment, Mrs. KUNDAcontended that that award was not supported by any documentary evidence. According to her, the Respondent simply submitted guesswork calculations. She relied on the case of MARY MUSAMBO KUNDA V. THE ATTORNEY GENERALl3) to urge this Court to overturn that award. A portion of our judgment in this case has been reproduced above. Having carefully read the decision in the MARY MUSAMBO KUNDA case, we are of the considered opinion that the facts of that case and the relevant issues are distinguishable from the facts and issues in the instant case. In that case, the Appellant was shot in her left leg by a policeman who fired shots carelessly at a taxi in which she was travelling. The trial Judge in that case awarded her a single lump sum of K35,OOO as damages, J17 encompassmg both pecumary and non-pecumary damages. The Appellant appealed against that award on the grounds that the award was erroneous and totally inadequate. One of the heads of pecuniary damages related to the loss of profits when, for a month, her grocery shop was closed as she underwent treatment. This Court stated in its judgment, inter alia, that- "The evidence in this respect was far from satisfactory and we do not wonder that the learned trial judge attempted to skirt around this problem. The plaintiff admitted that she kept no accounts and even if the learned trial judge accepted, as he did, that she used to gross K3,OOO per day, he had no evidence upon which to make an award since, obviously, only the clear profits would have been the loss suffered. The gross loss was claimed at K87,OOO but the failure by the plaintiff to adduce evidence to quantify the net loss must react against her. This Court has frequently lamented these failures by plaintiffs and the practice of expecting the Courts to make inspired guesses must be discouraged. We can only award a token sum of Kl,OOO in acknowledgement that the plaintiff lost something but which she did not prove." Clearly the issue in the MARY MUSAMBO KUNDA(3) case was that the Plaintiff had failed to adduce evidence relating to how much net profit she had lost during the one month that her shop was not operating. It must be noted that the damages relating to the loss of profits at the shop were special damages which require not only to be specifically plead but also proved by evidence. Conversely, the damages relating to the destruction of the rail line and the signaling equipment, in the instant case, are general J18 J...t damages. It is trite law that unlike special damages, general damages need not be specifically pleaded and may be asserted generally. The authors of ODGERS' PRINCIPLES OF PLEADINGS AND PRACTICE, 21sT EDITION have said, at page 164, that- "As to the allegation of damage, the distinction between special and general damage must be carefully observed. General damage such as the law will presume to be the natural or probable consequence of the defendant's act need not be specifically pleaded. It arises by inference of law and need not, therefore, be proved by evidence, and may be averred generally .... Special damage, on the other hand, is such loss as the law will not presume to be the consequence of the defendant's act, but which depends in part, at least, on the special circumstances of the case. It must therefore always be explicitly claimed on the pleadings and at the trial it must be proved by evidence both that the loss was result of the defendant's incurred and that conduct." it was the direct In the instant case, it lS not in dispute that the Respondent pleaded the general damages relating to the damaged rail line and the signaling equipment. It would appear from the judgment that, the Respondent presented clear calculations of the amounts it spent to repair the railway line and the signaling equipment. The learned trial Judge in awarding these damages stated as follows:- "According to the evidence that was led through the Plaintiff's third witness, the cost of repairing the railway line was about K16 million. The evidence was also that the cost of replacing the signaling equipment was about K287 million. The evidence was the various assessment not challenged. reports exhibited by the Plaintiff. The reports were internal ones which gave the costs of the property damaged or destroyed. The I have also looked at J19 figures in those assessments was led. Therefore, Kwacha for the signaling equipment." repair of are consistent with the evidence that I will award a round figure of K300 million of the railway line and replacement If the Appellant did not agree with the figures presented by the Respondent, it should have contested them either in its defence or through its viva voce and documentary evidence but did not do so. The learned Judge made findings of fact on the basis of the evidence and documents that were before him and we have found no basis to disturb them. It is trite law as per the case of WILSON MASAUSO ZULU VS AVONDALE HOUSING PROJECT LTDI71, that this Court can only disturb findings of fact made by a trial Court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts. On the basis of the foregoing, we hold that the first ground of appeal also lacks merit. The appeal having failed on all the grounds, we dismiss it with costs to be taxed in default of agreement. ••_----=--~ ("!":L' ~---~-_ / I. C. Mambilima CHIEF JUSTICE J20 .. I •J •. t.~. ( . C--n ~K-='----===C-~-- rt. M:e. aoma SUPREME COURT JUDGE • J21