Knowles v Hodges and 1 other (Civil Cause 529 of 1979) [1982] MWHC 3 (29 June 1982)

IN THE HIGH COURT OF MALAWI CIVIL CAUSE NO. 529 OF 1979 between RH. KNOWLES eFC F6OGOCD OO OFF L HG OE FLOKDOEOEOKOOKEEOODE FGOKLO PLAINTIFF and Pe HODGES e vee eee we Gewese ckuvewes cowsese wee 4Sr DEFENDANT and JoKo CHINTCLO ce cccvceeeocvecccoveccoesvesess.e: QND DEFENDANT Coram: Jére J. “oN For the Plaintiff: Kaliwo of Counsel 18t Defendant absent: unrepresented ~ ~ For the 2nd Defendant: Chiiidza Banda sf Counsel Chimasula Phiri of Counsel Official Interpreter: Kalirbuka/Kaundana Court Reporter: Brown JUDGMENT. The plaintiff claims against the defendants special damages and general damages and interest on such damages arising sut of alleged negligent driving by the first deféndant of a motor vehicle CA°4926 which resulted in the plaintiff's motor vehicle being badly damaged. The plaintiff's 6vidence is that at all matérial timés he was resident in Kitwe, Zambia, although at the time of trial of this action he was resident in Malawi ww wey His evidénce was that while in Zambia he had arranged to come and spend a holiday in Malawi with his famil}. They weuld be staying at a cottage at the lake Belonging to W.¢. French. They would not be charged for the use of the cottage. Y In June 1978 the plaintiff arrived in Lilongwe ahd stayed for afew days in the Capital City. He thén travelled to Blantyre, wheré he intended staying From the 9th of June until about the 12th or so, before proceeding to the lake. ~~ D2 - sass Yu Around 9 p.m. on the 9th of June 1978°the plaintiff parked his car, a Mercedes Renz EK 3565, And went into the Chinese restaurant with his wife and family and some friends They had just sat “down and were ordering the ford when a seourity guard came to inform him that his car had been damaged’ He went out with the guard and” found that the car had been moved about fifteen féet dawn the road, had mounted the pavement, and waS facing up the road °tewards the Mount Séche Hotel. There was considerable damage to the vehicle. This damage had been caused by a oollision between his vehicle and a Daihatsu four“wheel drive, a utility vehicle, jeep type, registration number CA 926. This vehicle had not stopped after the collision with the plaintiff's car but had Gontinued being driven down Glyn Jones Road: unfortunately if overturned. The plaintiff saw a Turopean standing beside the overturned car, and he présSumed that this man was the driver of GA 4926. This man was Thomas Hodges : hé denied that he was the driver of the vehicle, and said thet” prior to the accidént he had hired a Malawian Arives to take him to Shire Highlands Hertel where He was staying. It was the plaintiff's Evidence that H-dges was completely under the influence of alcohol ahd he was eventually taken away by the police. On the side of CA 4926 was painted the name Mchedwa Sstates and the address in Ntchisi district. - The plaintiff said that the General Manager of the Natisnal Insurance Company lent him a car, which’ saved him a lot of money and trouble. He said they could not go to the lake because they did not know"whén they could take up the cottage and W.¢. French had“1ét it go to someone else. Instead they stayed at Club Makokol 2. The plaintiff said he paid K418.85 for their stay ~ there: see Exhibit 4. They also stayed at the Mount Soche Hotel on the nicht of the 16th/17th Jtine 1978 and’for this h& paid K64.93. The plaintiff said from the 9th to the 12th of June 1978 they stayed at Ryall's Hetel atid paid K64.98° On 24th June 1978 he and his family flew out from Chileka Airport™~ and paid K222 for the air fares. He said the tickets had been last. He told the court that his vehicle was repaired by Malawi Motors at a cost of K41, 350.89. This amount represented a staff concession. The plaintiff Said that as a result of the accidént his holiday had~been™ completely ruined. His wife had come to Malawi on her doctor's orders, and as a result of what had happened she was very distressed. In answer to the court the plaintiff said they had booked the onttage from the 40th to the 22nd of June 1978 They were going to spénd the whole time there and then start driving Back. They flew out on the 24th because there had bech a slight mix-up with the air line over their original booking for the 22nd and they were not on the 'plane. They spent the last two nights with Mr. ~ Gibbons of the NavionSl Insurance Company because there was no hotel accommodation to be had. Mrs. Barbara Knowles, the wife of thé plaintiff, gave evidence which was substantially the’ same as that of her fia sve. She said they came to Malawi for a holiday. She was recuperating after an y VY Y a YL operation and they were also jeb-hunting They were to stay at a ecttage at the lake.” The first evening after théy arrived in Blantyre they went for a meal and parked the car outside the yest aurant. The night watchman came in and as a result she went out with her husband. She saw somebody who was trying to drive away a Daihatsu, and this vehicle overturned. Mrs. Knowles said they had been planning to go to the lake, but they couldn't” because they had no vehicle. They eventually went to the lake on the 12th of June, and stayed until about the 13th. She Was not quite sure about the dates now, as it was a long time ago. They went to Club Makokola and left there on the morning of the 22nd. “They eventually left Malawi on the 2dth. She said their wholé routine had been upset because of thé crash. She had come here to recuperate but in fact shé had got worse and had to seek medical assistance while inthis country. In cress-examination Mrs. Knowles said that Mr. Hedges had caused the accident. When they approached him he said he had hired a Malawian to drive him and it was this man who had caused the accident. . Mr. Tony Stainer Chapambala gave evidence on behalf of the plaintiff; He gaid he was employed by the Registrar-General' Ss Department as a senior examining “officer; and. his’ dutiés involved the processing “of applications “for the Foret ion of companiés, ~ applications for registration of business names” and “assessment of stamp duties on the increase of share capitals of companies. He preducéd Exhibit 5, which is a photastat copy of a Certificate of Incerporation of Mchedwa Ustates Limited dated 25th August 7978, Registéred No. 1893. He said that the directors of that~ company were Joseph Kanyarula Chintelc, Michael Kanyamula Chintclo and Kanyamula Chintelo. S In cross-éxamination the witness Stated that the documents for the formation of the compahy came in to their office early in 1978. He said he could neither confirm nor deny that the documents reached their rffice in March 4978. Vv wh Y Ndawala of the Road Traffic Commissioner's Office gave soadenes on oath. He Said his duties were to look after the registration papers Sf motor vehiéTés and licences. In 1979 he was working at the Road Traffic Commissionér's Office. He identified Exhibit 6 as a létter ocming from his office. He said the first registered owner 5f CA 4926 was Mchedwa EStates, whose | real owner was J. K. Chintelo. He said atocrding’to the recerds” the vehicle was now owned by Mr. N. C. Mthonga, who purchased it on 19th April 1979. ~ Tn cross-examination the witness said that thé registered owner of GA 4926 was Mchedwa states (J. K. Chinteolo). In re-~ éxamination he said that there might have been a change of ownership which was not registered. ~~ ~ VY The evidence of the second defendant is that he, Mr. Chintelo. 5 : % y r w : aes z is a business man. He started business in 1972 as an electrical a Vv a and building contract>r, and he also has estates. He said he knew aman by the name of T. H, Hrdges whic had been employed by Mchedwa Istates Limited in 1978 as a farm ‘manager. Ue was récruited by Sacranie Pannell Fitzpatrick & Company, Chartered Accountants. The witness identified Exhibit DX.1, which reads:- 46 March 1978 Cur Ref. suy/EpDM/LB/i15 The Manager, National Bank of Malawi, Capital City Branch, P. O. Box 30317, LILONGWE 3. Dear Sir, TEDWA ESTATES Do a eS C ¥ & ss We reFér to signor's telephone conversation with you this morfing and confirm that we have”recruited Mr. Thomas Hodges as the Ustate Manager Fer the above estate. His brief details are as follows ; Age 51 vears Marital Status Married : w Lv ins perience 12 years grewing tAbacco ~ 10 years as Tobacco Jbetension Officer in Rhedesia including farm planning Acreage grown 400 acres Yield Achieved 1500 lbs per acre The cash flow for the above estate is just being prepared and will be submitted to you next week. Ne shall be“most grateful if you will consider bringing him into thé country immediately and Apply to the Reserve Bank 4f Malawi for the permission to pay return airfare for himself. Yours faithfully, SACRANT PANNEL FITZPATRICK & CO c. G. JK. Chintolo, P. O: Box 402, Lilongwe." t+ aman by the vas between the” court that if you” gét a large” amount of money from the bank ¥ de not Allew you to employ anybody They simply tell veo that gemenne~is going to run the farn. He said ne had ne power to reject anybody. The witness said that he had nt beén informed th namé of Hedges was going to be employed. Thi: Hc the bavik managér. He t-ld the accountants ahd He testified that Mchedwa Ustates was inuccrperated as a” company Instrictiohs wee givén on 6th March 1978 to a firm of legal practitioners to fom a company. “Hie tendered Exhibit DX 2 to Suppcrt hiS evidence. He said the company was finally~ inesrp*rated on 25th August 1978. It was functioning before incorporation. The witness said the company hada pick-up which was invelved in an accident.” It was bought by him in’March or April 7978. He Said the bank terld him™to buy a vehicle for ise by the farm manager. and that he would be refunded his money. The money was refunded after the bank had approved thé loan to “chedwa Estates. The vehicle was registered in the name of MShedwa states Limited. The witness tendered DX.3, the certificate of ingurance. He said that Hedges was not employéd by Him but by the bank. He was dismissed without the kn-wledge or permission of the witness. ~ The witness produced DX-4, a letter to the Deputy Chief Immigration Officer’ from SAcranié Pannell Fitzpatrick & Company He said he had no control cver Hodges, “He further said that he was just as an crdinary man, aS a director, with no power to control anything. Cheques were being signed by the ban¥.~ All the machinery for the estate was being bought by thé farm manager, and” he was controlling everything for the estate, together with the accountants, The witness said he himself had Aever used the vehicle since it had been beught, and he was not there when it was invelved in the accident. Hedges ran away after causing the accident, and the vehicle was sold by the bank. - .. e v in crrss-examination the witness said he bouetit the véhicle with his own cash and Hedges was using it as farm manager of Mchedwa states Limited. Mchedwa Estates Limited had a lease of the land ‘on which it carried on its farming operations. If thé company made a prefit the bank would decide whether to give them dividends or not The witnéss tendered Exhibit DX. 5. He said he aid not sell the vehiclé to the bank, but the bank gave him money for buying it. tn other words, the bank gave him a refund, présumably Charging the Estate. It was his evidence that there was no change of ownership. coal oe v + Y ik ‘ le said when Hodges was being fecruited the accountants were sending copies of the letters to him. He tendered fxhibit DX.6. He said the bank seld a lerry: there were many things which were scld. In re-eXamination the witness said that the accountants asked him to lend money to “chedwa Estates, which he did, and after a month they refunded his K6,500. In answer to the court he said the bank réfunded him the purchase price of the vehicle by cheque, on production of the receipts. I remind myself” about: “the burden sf procf in civil Gases. On the evidénce before me I’am satisfied on a balance of probabilities that a motor vehiclé belonging to the plaintiff was parked near the Chinese restaurant on the “night cf the 9th -f June 1978 as deScribed by P-. W.14. I am further satisfied that it was hit by anot her vehicle, a Daihatsu, and that as a result of this cellision it sustained Severe damage as described again by P. W,7. I accept his evidence on this point. S The” circumst ances in which CA 4926 was driven, leading to the hitting ef “the plaintiff's vehicle, namély, Mercedes Benz ~ registration number I EK 3565, Saaia in my view and in law tor negligence, I cannot think of a clearer case of res ipsa loquitur than the present one. Here is a vehicle, parked in a proper parking bay, statisnary It is subsequent Ly hit and in consequence it is’meved fifteen feet down the road and ends up facing in the opposite direction. Tt must have been hit with great force. There is no explanation from either the first or the second defendant. Liability is clearly esta volished. The next issue is, who was the driver of CA 4926? There is the evidence of F.4.1 and P. W’2 that they were alerted by a watchman while waiting fer a meal in the China Bar that something had happened to their vehiclé. They went outside and found the vehicle about fifteen feet down the road, its front wheels having actually mounted the pavement. As PW, 4 ran dewn the road he saw a man standing beside the Daihatsu CA 45926, which had overturned “hen questioned this man said it was a Malawian who had been driving the vehicle, the implication being that He had run away He alleged that he had hired this man te take him to the Shire Highlands H-tel where he was staying. He, Hodges, the first defendant, subsequently fled the country. He did not appear in this action. In my view it was Hedges, the first defendant, who was driving CA 49 26, and if that vehicle had not overturned he "would ‘hatfe run away ~- a clear conse of hit and runy T am satisfied in my mind that Hodges was the driver of the offending vehicle. The next question to be considered is, who was the’ owner of CA 4926? The second defendant allegés by paragraph 3 of his defence that this vehicle was at the material time the property of the National Bank of Malawi. It is alleged’that the vehicle was sold to the bank arcund May 1978 at a price of K6, 500. The a Pm Sadiscane L Yu v vehiclé was bought from the second defendant so that it could be used for the purposes of Mchedwa istates Limited. This defence is difficult to understand. Does it mean that the vehicle belonged to Mchédwa Sstates Limited or the National Bank? The évidence on reccrd is that the vehicle was registered in the name cf Mchedwa Estate (Mr. J. K, Chimtoln) ~ mete, not Mohédwa Mistates Limited.” (See Exhibit 7.) Mchedwa Estate before incorporation belonged to the second defendant. At the material time there” had been no change of ownership. The vehicle was sold to Mr. Ithonga on 19th April 1979. There is documentary evidence to show that there was such a change. The second défendant argued that the National Bank of Malawi refunded him the money he paid for the vehicle. The véhiclé was used by Mchedwa Jstates' farm manager. “The burden is on him. the second defendant, to substantiate his stéry.° There is no evidence that there was a change of ownership from him to the National Bank. It must be borne in mind that under the Road Traffic Act section 6 the régistered owner is under a duty te deliver the registration bask to the néw owner within seven days. The law prescribes what is to be done in crder to 6ffect a transfér of a moter vehicle. Wo evidence was preduced cf the payment of the K20 transfer fee, or any other relevant evidence, “" Further, there isin evidencé the lettér of 23rd June 1978 from the defendant's soliciters to the National Insurance Company Limited, Uxhibit DX.6. This letter reads:~ “23rd June, 1978. The General Manager, ~ The National Insurance Company Limited P. O. Box 501, BLANTYRE | ee) Dear Sir, Ra: ACCIDENT ON GLYN JONES ROAD, BUANTYRE ~ MOTOR VEHICLE REGISTRATION NUMBER CA A926 > POLICY NUMBER O/LL/97/28/78/ (PO) eee "e have received instructions from your insured, Mr. JY Chintolo, “the proprietor of” tichedwa state, P. O. Box 402, Lilongwe, te repsrt to you that his motor vehicle Registration Number CA 4926 (which Ys cevered by your Pelicy Number ©/LL/97/28/78 issued on 13th April, 1978, at Lilonewe) was ~ récently involved in a read accident alone Glyn Jones Road in Blantyre when it ccllided with another motor vehicle Registration Number EK 3565, owned by Mr. R. He Knewles. iS ur. Knowles is claiming sd. (we hepe that you ha copy of a letter from Messrs. | A. 43th June, 1978, Refi Plis/ would like te ledge 4A claim with you = purpose we request you to gend us Claim Forms so that our client can fill in and return to you. ~~ « v against your 4 mano rroad a ae ea a “We have in the meantime written back to Wilson and Morgan denying liability for the accident. Yours faithfully. BSA, CHIUDZA BANDA AND COUPANY coc. Mr. J.~Chintolo, P's 0% Box 402, LILONGWE. LILONGWE ue Y ~ Y Yu In view of thé above eVidence I come to the conclusion that CA 4926 belonged to the second defendant. o Paragrapn 2 of the defence is as frcllows:.-- 26 The 2nd Defendant denies that the 18st Defendant was his servant at the time the accident happened as alleged in the Statement of Claim. The 2nd ~ Defendant states that the ist Defendant was employed by the National Bank ef Malawi and Messrs. Sacranie, Fannell Fitzbatrick and Partners. These 2 parties, namely, National Bank of Malawi and Messrs. Sacranie, Pannell Fitzpatrick and Partners having employed the 18t defendant later dismissed him without the knowledge of the 2nd defendant, so that at thd time the Writ wae issued the” 1st Defendant was no longer within the jurisdiction of this Court.“ v u % v v ee u Vv The second defendant t-ld thé court that™he gat & 1lét Of money from the National Bank and they Gould not allow him to empldy on his own. Ho was net allowed” to run the estate. “It was managed by the accountants and Mr. HAdges. He further complained tliat he did net recruit Hodges, did not pay him, and did not even dismiss him. “I have examifed Mxhibit DX.1, whichis a letter to fhe National Bank from the accotntants informing the bank about the ‘ ~_ ry Y v se employment of Hedges. A copy of the letter was sent to J. K. Chintcolo the second defendant. I have also examifed Exhibit DX.4, which was a letter asking the Deputy Chief Immigration Officer to treat the TEP application in respect of Hrdges as withdrawn. This is thé only evidéncé on recrrd. There ig no evidence t> show that Hedges was employed by the bank for the bank's purpeses or for the benefit cf the accountants. Vv v uhat is clear is thet © oruited oy the accountants and went to werk on’ the Viohodwa ich at ail material time belonged to the seoond defendant, who had got a Ioan from the Sank t5 run the estate. There may have been conditions as to How the money should be utilized. ~ Dees this mean thot the bank employed Hedges? Ido not think so. I think that the bank and the accountants were acting as agents of Mchedwa Ustate. In these circumstances, H-dges remained an employee of “chedwa Estate, which at that time was not inccrperated. Y Vv It has been submitted by counsel for thé séc6nd defendant that Hodges was not acting in the course of His employment when he was involved in this accident. It was stibmitted that he was on a frolic of his own. “I think this submission must fail. “In the first place it was not pleaded. “I cannot give judgment on issues that have not been pleaded. Secondly, thére is no evidénce on record that Hedges was not” acting in the course of his employment . Thirdly, on the authority of Harvey ¥. R. G. 0? Dell Ltd. and Ancther (1958) 2 3. B.°78, and also the Supreme Court decision A. S. A. Bhimani ve A» “dake Ponda, M. S.0. A. Civil Appeal No. 9 of 4981. The plaintiff is entitled “6 succeed on this issue. In these circumstances, tnerefrre, the plaintiff succeeds. I give judement fer the plaintiff. The plain aft has claimed in all K2 276. 75 as special damages. The first head is for repairs. It is matle up ag to spare parts K1,150.89 and labour K200. This is reasonable and I allow the clain. - - - . The next claim is hetél accommodation, which comes to K703.86" This bill causes me a lot of thought The plaintiff was booked to stay at the Take, where he had & onttage linéd’up for him. He had an accidént on the 9th. Why could he net go onthe 10th? He was given a metor vehicle by his eclleagues. Why could hé-not™go? He said he was trying te trace Hodges. His wife was more open She said because of the accident their whcele plans weré upset. Their plans were indeed upset, but theré was no need to “upset the plans. It was not the plaintiff or a member of his family who was involvéd “in the accident, it was their vehicle. They were under a duty to mitigate their losses. liven if they had gone t9 Stay at the cottage they would Still have inouyréd expenses. To make matters worse, the claim includes 4 sum of KCA, 98, a bill at Ryall's Hotel inourred 6n the 8th of June 1978 This was before the accident. Tt cannot be allowed. In these circumstances I” disallow the claim fer K 703.86. IVgrant the plaintiff the sum of K300 as reasonable in all the circumstances. VY a The last claim is for K222.00 for air fares. The plaintiff would in any event have spént K70 had he been using his vehicle. I allow therefore K152.00 on this head. VY Vv ~ On damages I award him a sum of K50. There is no need for me to award interest. - 10 - The total amount is therefore: K 4,350 . 89 K 300. . 00 KK 452 . 00 K 50 . 00 core a ig Oo K 1,852 . 89 & ee ASTRA Gok Ua I give costs for the plaintiff. Pronounced in open court this 29th day cf June, 1982, at Blantyre. cd Ag lf fPL. Liir?. N. Sf JuRE JUDGE