Semba v Chaima & Anor. (Civil Cause 294 of 2014) [2017] MWHC 129 (11 May 2017)

Patrick Semba v. Davie Chaima & Prime Insurance Company Limited Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO 294 OF 2014 BETWEEN PA TRICK SEMBA (suing on behalf of FATIMA BANDE, Deceased) ................................ ............. PLAINTIFF AND DA VIE CHAIMA ......... ....................................... ...... PRIME INSURANCE COMPANY LIMITED .......... ..... 1 sT DEFENDANT ND DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. A. M Defendants, absent Mr. 0. Chitatu, Court Clerk ussa, of Counsel, for the Plaintiff Kenyatta J. Nyirenda, JUDGEMENT The Plaintiff accident. is claiming The Defendants damages resist the action. for personal injuries that she sustained in a road The Statement of Claim is brief and it is as follows: "I. The Plaintiff brings this action on his own behalf and on behalf of other beneficiaries of the estate of Fatima Bande, the deceased. 2. The 1st defendant was at all material Number BR 1791 Toyota Hiace Minibus Registration being sued pursuant the insurer of the aforesaid to the provisions Motor Vehicle. times the driver of Motor Vehicle and the 2nd Defendant of the Road Traffic is Act as of Section 148(1) 3. On or about the 081h February, driving the said motor vehicle 2014 at about 09. 00 hours, of Bangula from the direction the 1st defendant was towards heading Patrick Semba v. Davie Chaima & Prime Insurance Company Limited Kenyatta Nyirenda, J. Ngabu when upon the motor vehicle .from right to left as a result receiving whilst he negligently who was lawfully hit the deceased serious the plainti((sustained Hospital. arrival to violently permitted crossing or caused the road and later died at Chikwawa treatment District at Nyaikha injuries village, 4. The accident occurred or was caused by the negligent driving of the rt defendant. Particulars of Negligence (a)Driving at an excessive speed in the circumstances (b) Failure to keep any or any proper lookout (c)Failing to brake, to stop, to slow down, to swerve or in any other way so as to avoid the accident. (d)Failing to manage or control the motor vehicle so as to avoid the accident. (e)Driving the plaintiff the motor vehicle without regard to other road users especially (I) In so far is applicable or, the plaintiff's will rely on the doctrine of res ipsa loquitur 5. In further alternative, of the charges the plaintiff the rt defendant Section 126(2) of RTA and paid a statutory of causing death by reckless fine ofK5,000.00 under GR 762381. driving con'trary to will place reliance on the admission made by 6. As a result of the accident, the plaintiff iniuries suffered serious and has suffered loss and damage. I of/oss Particulars and damage (a)Loss of dependency (b) Loss of expectation of life (c)Funeral expenses And now the Plaintiff claims: ( a) Damages for loss of expectation of life (b)Damages for loss of dependency (c)Funeral expenses (i)Police report K5, 000. 00 (ii)Death report K5, 000. 00 ( d) Costs of the action" Patrick Semba v. Davie Chaima & Prime Insurance Company Limited Kenyatta Nyirenda, J. ed in the Statement the action The Defendants a defence was filed. The and, accordingly, of fact contain specifically deny that (a) the 2°d Defendant was an insurer er BR 1791 Toyota Hiace Mi The Defendants contest Defendants deny each and every allegation Claim. Motor Vehicle Registration Numb (b) the accident was caused by the alleged or any negligen the 2nd Defendant Defendants. to the owner of the Minibus (if he is proven to be the 2nd Defendant's "being found liable for the Plaintiff's injuries" Minibus and (b) its liability, in any, is limited Minibus to the maximum liability the owner contained in the insurance between itself and and no more. ce on the part of the that (a) its liability, if any, is subject resulting to indemnify the owner of the of the Minibus which limit is K5 million from the use of the nibus (Minibus), Further, pleads of of insured) one, a plaintiff of probabilities: see Commercial It is trite that a claimant has the burden of proving lawsuit. In a civil case, like the present on a balance [2002-2003] MLR 43 (SCA). It, therefore, follows that in the present burden of proof is on the Plaintiff prove on a balance of probabilities of the accident which was caused by negligence Sacranie v ESCOM, HC/PR Civil Cause No. 717 of 1991 [unreported]. as the party who has asserted that Fatima Bande (Deceased) died as a result the elements of his or her has to prove his or her case of the 1st Defendant: see B. Bank of Malawi v. Mhango the affirmative to case the for the Plaintiff's case was the Plaintiff himself. He The one and only witness adopted is simqar in material not, therefore, tendered and P2 respectively. The Defendants there was no cross-examination his Witness Stat�ment and this formed his evidence respects to the averments give a recount of the evidence save to mention in the Statement in chief. His evidence of Claim. I will that the Plaintiff a police report and a death report the same were marked as Exhibits Pl of the witness and this marked the Plaintiff's case. and their legal practitioners being absent, The case of Blyth v. Birmingham Waterworks Company (1856) is famous for its classic statement of what negligence is and the standard be met. Baron Alderson made the following famous definition 11 Ex Ch 781 of care to of negligence: "Negligence considerations doing something might have been liable reasonable precautions is the omission to do something which a reasonable man, guided upon those which ordinarily which a prudent the conduct and reasonable regulate of human affairs, would do, or man would not do. The defendants 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" For an action to succeed, duty of care owed to him or her; (b) the duty has been breached; in negligence the plaintiff must show that (a) there was a and ( c) as a result Patrick Semba v. Davie Chaima & Prime Insurance Company Limited Kenyatta Nyirenda, J. he or she has suffered loss and damage: see Donoghue v. Stevenson AC 562 quoted with approval by Ndovi J., as he then was, in Kadawire v. of that breach [1932] Z�gone'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 of a motor vehicle to other road users as follows: the duty of care owed by a driver owes a duty of care to other road users not to cause damage "A driver of a motor vehicle to persons, vehicles reasonable circumstances. speed, care which an ordinary skilful A reasonably and observes keeps a good look-out, and property skilful driver the road. He must use under all the driver would have exercised has been defined as one who avoids traffic signs and signals. " of anyone on or adjoining excessive Company Ltd and National that a driver Insurance of a motor vehicle he can see to be clear. look out and to drive at such speed as would allow him to This means that a driver of a speed: see at excessive it avoid driving (1997] the distance the case of Mhango v. Positi 2 MLR 402 is for the proposition Further, (1995] to always keep a proper stop well within motor vehicle must, among other matters, Mponda v. Air Malawi Limited and another is a driver's emergency. condition material and another, and use of the road in question, time or which might be expected supra. 2 MLR 131. Furthermore, duty to drive at a speed which will allow him to stop in case of sudden the courts In deciding the amount of traffic to be on it: see Kadawire will have regard reasonable on the road at the speed, has a duty v. Ziligone to the nature, herein duty of care in that he was over-speeding and it is my finding that the 1st Defendant and he did not keep proper the evidence and, consequently, There being no evidence I have considered breached lookout users. of probabilities, this action, judgment of damages as pleaded. succeeded he failed in his duty of having due regard the Plaintiff funeral expenses in his claim for damages, from the Defendants, for other road has, on a balance and costs of I, accordingly, issue of assessment enter I thus find the Defendant wholly liable. in favour of the Plaintiffs and order that the collateral be dealt with by the Registrar. Pronounced Malawi. in Court this 11th day of May 2017 at Blantyre in the Republic of � Nyirenda Kenyatta JUDGE 4