Matewere v Prime Insurance Company Limited (Personal Injury 117 of 2014) [2017] MWHC 47 (10 February 2017)

MALA WI JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 117 OF 2014 BETWEEN: PAUL MATEWERE ................................... .......................... PLAINTIFF AND PRIME INSURANCE COMPANY LIMITED ... ........................... DEFENDANT CORAM: THE H ON. JUSTICE M. L. KAMWAMBE Mr. Yusuf, Counsel for the Plaintiff Mr. Lemucha, Counsel for the Defendant N. W. Phiri, Court Clerk JUDGMENT This is an action by the plaintiff against the defendant. It is alleged by the plaintiff that due to the negligence of the motor cycle rider of Honda XL registration number MG 792 AF insured by the defendant, his son suffered severe head injuries which subsequently led to his death. The plaintiff therefore, claims damages for loss of expectation of life, loss of dependence and special damages as pleaded but to be assessed by Assistant Registrar. The plaintiff also claims the cost of medical and police reports. The plaintiffs action is vehemently resisted by the defendant who essentially denies all the allegations and averments in the plaintiffs statement of claim. At the outset, the court reminds itself that these being civil proceedings, the required standard of proof is proof on balance of probabilities- see Miller v Minister of Pensions [1947] All ER 372; Sivaswamy v Agason Motors Ltd [1995] 1 MLR 274; Mike Mlombwa v Ox/am Civil Cause Number 2343 of 2003. It is a lesser standard than that required in criminal proceedings which is proof beyond reasonable doubt. The burden is discharged once the evidence is such that the tribunal can say, "we think it is more probable than not," then the burden is discharged but if the probabilities are equal, it is not. The court also duly bears in mind that as a general rule on evidential burden of proof, it is the party that alleges the existence of certain facts upon whom the burden of proof rests; but he who denies need not prove it. This duty is fixed at the very beginning of the trial by the pleadings- see Joseph Constantine Steamships Line v Imperial Smelting Corporation Ltd [1942] AC 154 @ 174. The evidence that is before this court is only from the plaintiffs side, the defendant having promised the court to bring witnesses but has failed to do so. The evidence of the plaintiff is to the effect that the plaintiff is the father of Chisomo Matewere (deceased) and he brings these proceedings on his own behalf and on behalf of all persons who are entitled to make a claim in respect of Chisomo Matewere under Section 7 of the Statute Law (Miscellaneous Provisions) Act. On 18th September, 2013 at Chifunga Trading Centre along M6 road, the driver of motor cycle registration number MG 792 AF Honda XL so negligently drove the said motor cycle and he ended up hitting the deceased, Chisomo Matewere, who was a pedestrian in the company of other children while on their way from church. According to the plaintiff, on this fateful day, his son was hit by the motor cycle rider when he negligently changed lanes from left to the right to avoid hitting the other children who in the end, hit his son who was in the right lane crossing the road. As a result of the accident, his son sustained serious head injuries and was rushed to Chifunga Health Centre. The deceased was pronounced dead upon arrival at the Health Centre . Medical Personnel attributed his death to the severe head injuries sustained in the accident. There is a death report PM 3 tendered in evidence to buttress the plaintiffs evidence on the cause of the deceased's death. As for the second witness, Mrs Victoria Banyera (PW2), she told the court that she was present when the accident which led to the death of the deceased took place. In the afternoon of this fateful day, as she was coming from her maize garden she saw the deceased, Chisomo Matewere in the company of his friends crossing the Mwanza/Blantyre Road which passes near the Zambezi Evangelical Church. She then saw a motor cycle registration number MG 792 AF Honda XL driving at high speed from Mwanza towards Blantyre and suddenly changed lanes from the left side to the right side of the road where he hit the deceased while crossing the road. This is enough evidence for negligence on the part of the motor cycle rider. How could he change lanes w illy-nilly from left to right and yet also at high speed while seeing children of tender age crossing the road? In her further testimony, PW2 told the court that after the accident, the motor cyclist wanted to run away but she pleaded with him to assist the victim. She also accompanied the victim to Chifunga Health Centre where he was pronounced dead. She further told the court that the deceased died due to severe head injuries sustained in the accident, the accident occurred due to over speeding by the motor cycle rider, the deceased was buried the following day on 19th September, 2013 and she also attended the burial ceremony. At this point in time, it has to be pointed out, that in the defence, the defendant JOms issue with the plaintiff on all material allegations of fact averred in the statement of claim. Therefore, the state of pleadings is such that the burden of proof lies on the plaintiff to prove all material allegations on which his case against the defendant rests- see Miller's case (supra) . This position of the law was duly reiterated by Villiera J in Somanje v ESCOM civil Cause No . 717 of 1991 as follows: "It is important to observe that the burden of proof never shifts from the plaintiff to the defendant except p erhaps where the defendant has pleaded contributory negligence. " Whether the accident was caused by the negligence of the defendant's insured driver. The blanket evidence from the two witnesses point to the fact that the accident occurred due to gross negligence on the part of the motor cycle rider. According to the second witness, Mrs Victoria Banyera, on her way from the maize garden towards the Mwanza/Blantyre Road she saw the deceased in the company of his friends crossing the road in the right lane. Then all over a sudden, saw the motor cycle rider driving at high speed in the left lane, he then changed lanes from left to right without reducing speed and hit the deceased in the process while in an attempt to avoid hitting the other children who were in the left lane of the road. As a reasonable motor cycle rider, upon seeing children crossing the road way ahead of him, he was supposed to slow down and even stop to let them cross the road considering their tender age. He would have lost nothing in the process. Instead, he chose to continue riding the motor cycle at high speed thereby leading to the accident. After the accident, the deceased fell down and remained in comma. In Mvandiwa & Others v Star International Haulage Company Limited & A nother [ 1991] 14 MLR 217, the court stated that a child of young age cannot be held liable for contributory negligence since he does not possess the required intelligence to make a sound judgment on the road. It is the duty of a motorist to slow down and sound his horn whenever approaching dangerous places such as a trading centre, market or school where there is a possibility of the presence of very many people, in order to warn them. Failure to do so is enough evidence to establish negligence. Hence, the defendant cannot raise the defence of contributory negligence. There is no evidence from the defendant to contradict this piece of evidence. Even in the cross examination of the plaintiff and his witness, there was no slight attempt by counsel for the defendant to challenge such evidence. The plaintiff, therefore, has proved to the required standard that the accident which led to death of the deceased was due to negligence of the motor cycle rider. Whether the defendant's insured is liable for the accident Furthermore, the plaintiff has proved that the motorcycle was indeed insured by the defendant. The plaintiff proved this to the court by tendering the motor insurance certificate and the Police report. Negligence is defined as the breach of duty to take care by a person which results in damage being suffered by another person- see Yanu Yanu Company Ltd v P. B. Mbewe & M. M. Mbewe 11MLR405@ 408-410; see also Nance v British Columbia Electricity Ry Co. Ltd [1951] AC 601. See Osborn 's Concise Law Dictionary, 8th Ed. Page 227. Thus, for a party to be liable for negligence, three essential elements must be satisfied. It must be shown firstly that the defendant was under duty of care; secondly that the defendant by his conscious acts or omissions has breached that duty of care and thirdly; that as a result of such breach, damage wa suffered by the other party. The position of the law is that it is the duty of every person who drives a motor vehicle on the highway to use reasonable care to avoid causing damage to other persons. See Charlesworth on negligence 5th Edition page 488 paragraph 812 . The standard of care expected of a driver is reasonable care which a competent driver would use in the circumstances and there is a catalogue of case authority on this proposition among them Mponda v Air Malawi and Another [ 1997] MLR 131. In Di/la v Rajan 12 MLR 358, it was held that such a driver is expected to avoid excessive speed, keep a good look out and observe traffic signs and signals. The witnesses ' evidence in this case, as earlier on observed, indisputably shows that the accident happened when the motor cycle rider while driving from Mwanza in the direction of Blantyre drove in the left lane and suddenly changed lanes from left to right without reducing speed to avoid hitting the very many children in the left lane and ended up hitting the deceased in the right lane while in the course of crossing the said road. Clearly, the motor cycle rider was in breach of duty of care he owed the deceased in the company of the other children as other road users. As a result of breach of such duty, the motor cycle caused severe head injuries to the deceased. A driver of a motor vehicle owes a duty of care to other road users not to cause damages to persons, vehicle and property of anyone on or adjoining the road. He must use reasonable care which ordinary skillful driver would have exercised under all the circumstances. A reasonable and skillful driver has been defined as one who avoids excessive speed. Keeps a good look out, observes traffic signals and signs See Banda & Others v ADMARC & Another [1990] 13 MLR 59@ 63; see also Kachingwe v Mangwiro Transport Motorways Company Ltd 11 MLR 362@ 367. The defendant in this case has not adduced any evidence in defence to disprove such acts or omissions. During cross examination of the plaintiff, there was an attempt by counsel for the defendant to impute negligence into the plaintiff for letting his child as young as 6 years to cross the road alone but replied by stating that the children were discharged earlier at the church leaving their mothers behind. Moreover, the plaintiff was at home. The court enters judgment in favour of the plaintiffs claim for loss of expectation of life, loss of dependence, cost of medical and police reports. As a result of the death of the deceased, the family has been deprived of a helping hand that was rendering to them in household chores. Moreover, the family will miss him for the rest of his life. In the light of the above evidence, the plaintiff has sufficiently proved his claim for loss of expectation of life and loss of dependence, as such, judgment is accordingly entered in his favour. By critically looking at the pleadings, the averment by the plaintiff that the motor cycle driven by Mr David Kapoloma was insured by the defendant is not at all disputed and therefore, not an issue. By virtue of Section 148 (1) of the Road Traffic Act, the plaintiff is entitled to recover from the defendant. The Section is as follows: Any person having a claim against a person insured in respect of any liability in regard to which a policy of insurance has been issued for purposes of this Part shall be entitled in his own name to recover directly from the insurer any amount, not exceeding the amount covered by the policy, for which the person insured is liable to the person having the claim. I therefore, find the defendant liable. Damages shall be assessed by the Registrar of this court if not agreed by the parties in advance. Owing to the legal adage which goes "costs follow the event," this court awards costs of these proceedings to the plaintiff. Pronounced in open court this 1 Ot11 day of February, 20 17 at Chichiri, Blantyre. MLKamwambe JUDGE