Zidana v Professor Chimphamba (Civil Cause 440 of 1987) [1991] MWHC 12 (16 January 1991)

I IN THE HIGH COUR'.t' OF NALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.440 OF 1987 ,, . . .,,:.: -••• > •• -.....;;..,,;..;..._,.,,,,,. BETWEEN: Coram: S. Bo Z IDANA o o o •• o o ., o " " o • o ..... o o •••• o • o •••• o PLAINTIFF and PROFESSOR B. B. CHH-iPHAMBA ••••••••••••••••• DEFENDANT MTEGHAP J. Makhalira of counsel for the plaintiff Msiska of counsel for the defendant Manondo (Mrs}v Official Interpreter Longwe, Court Reporter JUDGMENT ouRr-o7 ·-· -, '~ On 17th November 1984 there was a road accident along Ntcheu-Kasinje road when a motor vehicle, registration number BE 5855, driven by the plaintiff tlas in collision with a vehiclev registration number BE 2471, driven by the defendant. As a result of the a~cident the plaintiff suffered severe injuries to his leg which has been shortened by about 3/4 of an inch. The plaintiff is therefore claiming damages against the defendant for negligence. The defendant denies ·negligence and pleads that the accident occurred because of the plaintiff's negligence or contributory negligence. It was the plaintiff's evidence that on the material day he was driving his company car BE 5855 going home to see his father. He had with hirn0 in his car, three brothers and one Brm1n Jiya. After Mphepozinayi there was a bend and as he was approaching the bend he saw a vehicle coming from I<asinje side going towards Ntcheu. It 'l.tas a pick-up. As the pick-up was fast, he reduced his speed and drove to his far left. He was doing about 30 -40-~~1uph. Suddenly, the pick-up swerved to his side and collided with his vehicle. The time t1as about 5.15 o.m. It Nas his evidence that he could not avoid the pic1,-up because he i:1as already on his side, but the pick-up could have moved to its left because there was room on that side. It was his evidence in chief that as he i1as going towards r<asinje v the road was ascending, but going towards Ntcheu, the road w-as descending. 2/ 0 0 0 g O 0 2 I will now revert to the evidence of the defendant, Pro fessor Chimphambao He told the Court that on 17th November 1984 his vehicle was involved in a road accident at Mphepo zinayio He was driving it himselfo It was a pick-up, Datsun BE 2471. He had two passengers in the cab -his servants. The pick-up had carried bags of maize and mangoes. The load was heavy. He was doing a speed of about 40 kmph. It was his evidence ,that as he was approaching the bend, he was doing about 30 kmph and he approached the bend cautiously as usual. It was his evidence that he saw a saloon car screeching, he swerved to his left and stopped, but the saloon car hit him on the right side and. the saloon was pushed baclt. He said that at that junctureq the road was narrow and that there was tall grass on either side of the road. He further went on to say that he had travelled on that road on numerous occasions~ It -;:ias further his evidence that as he was entering the bend one of his servants scream.ea at the speed of the other vehicle: and it was too close to avoid the accident. He denied to have driven on the wrong side of the roado It was further his e•Ji dence that at the moment the road has been improved and that the tall grass and trees have been cut on both sides of the road. It ~ms his evidence that. after the accident the plain tiff's vehicle was pushed back because it was lighter than his vehicle. I will now return to the plaintiff's evidenceo It was the plaintiff's evidence that after the impact the plaintiff's leg was broken on two places on the femur and his brother had to pull him out. He was then taken to Ntcheu District Hospi tal and the following morning he was transferred to Blantyre. It might be pertinent here to look at the evidence of PW3u Brown Lewis Jiyau whose evidence seems to have some bearing. He informed the Court that on 17th November 1984 he was a passenger in a vehicle driven by the plaintiff going to Kasinje from Ntcheu. In the vehicle there Nere four people~ the plain tiff, his brother Frazer, another brother Kelly and himself. At r1phepozinayi there was a corner and the driver was slow. Then he saw another vehicle from the opposite direction corning fast and was fully loaded. I1: then suddenly left its side and hit the vehicle in which he was, damaging it extensively. All the passengers in the vehicle were injured except himself. After the impact he helped the plaintiff to go to the hospital. It was his evidence that it was he who too}c sorinters and tied the plaintiff vs leg u and at that time the def~ndant ~,,as comp laining about the daDage to his car. In his evidence in chief, on this aspect, the defendant said that after the ir.npact, he did not see th~ plaintiff but PNtJ, whrnn he had ltnown during school days. By then the plaintif £ v.,as pulled out and he cor~p. lained about his leg. PtrM then said ''please Professor, help us", at which he asked "where i;,_rere you rushing to?11 He asked this question because no prudent driver could have driven in such a manner as the plaintiff did. Anyway, he borrowed a bicycle and rode to the trading centre where he hired a vehicle and collected everybody ,,vho tJas injured to go to the hospitalg except Jiya, PW3. After dropping the injured at the hospital, he went to report to the Pol ic·e at Ntcheu Berna. He then went to the scene where he found two ':.':'raffic Police Officers. 'I'hey 3/ .. 0 0 0 3 did not as};:: for any statement because they did not have paper t he was, however, requested to give a stateMent at Lilongwe Police, which he did. PW4 w-as Frazer Zidana, a brother to the plaintiff. He told the Court that on tnis particular day he was in a motor vehicle driven by his brother. '.rhey were four in the vehicle. At Mphepozinayi, as they were driving, there was a vehicle t..rhich was coming :f.ron1 the opposite direction. This vehicle hit them on their front right hand side and they were squeezed inside. He and his friends managed to get outu but the plain tiff was insidev crying ijl:i:1y leg, my leg". It •,.ras his evidence that the other vehicle from the opposite direction took their side and was driving fast. This witness further went on to say that after they came out of the wreck and his brother had been Pulled out, he noticed that the defendant, whon he had known-for years, was the driver and he said to him, "Professor, you have injured us", to which rernark the defendant said 11sorry", and he went on to chec~ his vehicle. He went on to say that he could not recognise the vehicle ,rhich took. them to the hos pital because blood was oozing fro:m his face. It was further his evidence that he met the defendant once after the accident and the defendant wrote him a letter dated 29th January 1987. This letter was produced as Exh. PS. It might be prudent if I reproduce out this letter. It states~ uTltls is a follo.'IM.lp of the telephone conversation I had with you concerning your brother Sanderam Bisani Zidana... The l.ine ~.-,as faint and it was ii:r{X)ssible for us to continue the conversation. I 'l'\0S saying that I heard frorn sere sources that your brothervs health is not good as a result of the accident on l\bVernber 17, 1904u in ·which you ai-id I were involved. I am surprised to learn about this now because I !net with. you in Ntcheu early last year you told ire t.nat your brother had recovered fra:n the injuries he sustained on hloVember 17 u but that, unfortunately u he was involved in yet anot1i.er car accident and sustained injuries, apparently on the sa.re leg. I was, as you may recall u shoc1~ea to learn t..11at he had within a short period of tirre sustained injuries arising fran t~JO separate incidents. Perhaps you will be kind enougn to explain to me to \-Jhat e,"Ctent your brother Is second car accident cont ributes to his present poor health." It l•J'as PW~, us evidence that this source of information was not given by him since they only met once after the accident. 'l'he first defence witness was Mr. John Bernet u an emplo yee of the defendant. It was his evidence that on this fate ful day he uas in the front of a pick-up with another employee, Martin Roderic, driven by the defendant. 'i'he vehicle was loaded ,-..1ith bags of maize and r>.1.an1oes and the defendant was not driving fast. It was his evidence that at the scene of the accident the road \. Jas curving and there was bush on either 4/ 0 0 ••• ... / ufi-T Of MAL" W/...._~ .-'~GO 1/'-,t,f' 1/ • 4 _ t 02~~~:::~ .-.:;;.;_~;,.;;.;__;,;,.-.... ~·-;;-side of the road. He did not therefore see the other vehiclev but soon before the accident, he saw the other vehicle coming very fast and hit ther.:1 on the right front light. It was his evidence that after the accident1 they got out of the vehicle and the defendant 'l'.1ent to assist the occupants of the other vehicle. He tied the leg o:c the plaintiff and went to fetch a vehicle vrhich took the-::i1 to the hospital at Ntcheu Born.a. It was his evidence in cross-e}~a:mina:tion that he could not see the other vehicle because it t-Jas at a curve •. However, after being pressed in cross-examinationr he said that he saw the on-coming vehicle1 but that his bossr that is the defendant, was fast and could not avoid the accident. He denied that a vehicle had passed the two vehicles aEter the accident going towards Ntcheu. This then is the evidence before me as far as the cause of the accident is concerned. As far as damage is concernedv there is no dispute that all the passengers in both vehicles had some minor injuries e~~cept the plaintiff who had severe injuries. He told the Court that he bro:te his leg in the accident and ·was taken to Ntcheu Hospital. The following day, he was taken to Queen Elizabeth Central Hospital in Blantyre where Dr. Ngwira attended to hi~. He was in hospital up to February 1985v a period of over three rnonths. He went on to say that after he was dis charged he was sent to Harare for special treatment. Dr. J. A. McLean sent hirn there. In Harare he was attended by Dr. Bhagat. To substantiate his story Dr. Joan McT.,ean was called as PW2. It was her evidence that in Pebruary 1985 t.he plaintiff went to see her because he had pain in his leg following a road accident in which he bro~e his right femur. He had already been treated at Q. BoC. H. As a resultf she referred him to Dr. Bhagat in Harare because his leg was short. She got a report from Harare, dated 3rd April 1985. This report, inter alia, states~ "Local e~{amination of the right leg~ 'i'he leg is kept. in an external rotation of awro,r.frnately tJ1irty degrees. '!here is aoout one and a half inch shortening in this leg. 'I'he true shortening is appro~i>:1ately just about one inch. Clinically, the fracture is firm and the knee function is reasonably satisfactory. Xray ta:'re.n at Harare sho.\75 that the fracture is in its advanced healing stage but not consolidated enough to permit v.eight bearing -;-ri thout any form of support. I have advised h.i.rn that one sriould not, at this stage, do anything to interfere ·with t.'1e fracture healing and that he should accept the shortening vim.ch can be coPpensated by s...1-ioe raise even tually. I have also advised hi.?.1 to }iave ischial v"8ight caliper which he should ,,~r ar1d t:a";.e ,.eight through t...'1e right leg "'1hic..11 will gradually i-:ia1i:e hi3 leg n:ore functional. He should be advised to Hear the caliper for at least four r.:-onths. i, 5/oooo• 5 She went on to say that in July 1985 he ~.,..yent back to Harare and he was seen by Dr. B~agat again. She got a report; dated 23rd July 1985. This letter-states: '°J. send him on 23rd July for a revie;,1 of his right cx:rrni nuted fractured fe;.rur" Clinically and radiologically t.'le fracture has i1Ql,,r very viell united with unfortunate loss of leg length of appro;d __ rretely t."'1.ree quarters of and inch. The latter ,,as to be expected in vie:1 of his conminuted nature of ti.1ie fracture. It apoears that he has been walking •,d.thout the aid of cali~r recently. J Na,, that t.he fracture is consolio.ated8 he ,ray gradually{( discard the caliper and use one wal:dng stick. ,... For his shortening; I think a suitalole raise is neces sary on that side, 11 She went on to say that his disability is moderate. This then is the evidence concerning the injury. There is no disoute at al 1 that on this 1•1aterial day the vehicles driven by both the plaintiff and the defendant collided. As a result of this collision; the passengers; especially the plaintiff, suffered severe injuriesr resul-ting in his leg being shortened by three quarters of an inch. Both parties contend that it v~s the other party that took the other side of the road. This is a civil case and the plain tiff is only required to prove his case on a preponderance of probability. The Court visited the scene. It is a fact that t,rhen one is driving from Ntcheu Bona towards Kasinjer the road descends and there is a bend curving to the left. When one is driving from Kasinje direction, the road initially descendsu but ascends inmediately at the begin ning of the bend ~iliich curves to the right. It is also a fact that the road at the spot is not flatv but is at a gradient so that a person driving fron Kasinje direction will be on slightly higher ground than the one driving from Ntcheu direc tion. In other ·words u if both vehicles parked side by sider the one from Kasinje direction would be slightly on higher ground than the one from Ntcheu direction. It has been submitted by both counsel and, in wy view, rightly so, that this case depends purely on the facts. Both parties allege that it 'ic1!as the other who was in the wrong. Mr. Msisha, however, has sub8itted that the plaintiff1s evi dence is dented by inconsistencies. He submits that the plain tiff contended that he was driving uphill, while in actual fact he was descending. The plaintiff contended that the defen dant did not render any assistance to the plaintiff, but was z,10re concerned with the da;.:-1age to his vehicle. But in actual 1A.tl1,., ... ~\,o~•W ::_..,._ • 11,•H•,.-.,, .. ,-:~;:c;,;, ;,;, (I' ,,,,.;;' . )} I, /)' ,,,;/' _ ~--Ull~~l'. Y __ ,...;.;.:;,.;;;-:-:/ fact it •:1as tl1e defendant who tended the pl;I'nt~i'ff 1 s leg and went to hire a vehicle which took the plaintiff to the hospital at Ntcheu. Mr. Msisha therefore contends that the plaintiff1s evidence, and that of his ~itnesses, ~ras grossly e~aggerated. It was his subMission that the evidence of the defendant uas emphatic and t,1i thout any exagqerations. On the other hand, Mrc Ma::,halira has submitted that despite the fact that t:1e plaintiff said he tJas ascending uhile in actual fact he t·ras -descending, his evidence is impeccable. It was Mr. i:-3a:chalira Is contention that al 1 the plaintiff Is -:1i tnesses were consistent that it was the defendant who was ariving fast and-that he took their side of the road, and hit them on their correct side. r1y observations on these submissions are these o It does no-t: follo,-., that if a ,;,erson has told a lie in a -1atter relating to one thing, that person must necessarily be disbelieved in his testimony in respect of al 1 other :r1.att.ers -I<a·inlangila v. Kaulangila (19~6-68) ALR (~) 301 at 313. Li~ewise, the fact that a ·.-1itness is ernpl1atic in the way he delivers his evidence does not necessarily rnean that he cannot tell a lie in his evidence on one asnect -of the \natter to ~<Jhich he is t:esti fying. '.:r'herefore p wi1at the plaintiff said u that ne '(!-!as ascendlng ,·1hile in ac·tual fact he was descending, does not mean that he told a lie on a.l l other issues. Si':ni larly. the fact that the defendant was e~·1nhatic in his evidence does not -::n.ean he told the truth al 1 alo~g. In fact v in cross e>-mnination, he said that the Police did not record a statement fro@ hirn on the scene because they did not have papero This is clearly not correct. Am I entitled to disbelieve all his testimony? The answer is clearly in the negativeo Perhaps I shoula state the law here on this type of negligence.~ The rule of t1.le road is that when tv10 vehicles are approaching each other :from the opposite direction, eaci'l must go on the left or near side o.': the road in order to al loN ~he o~her to_passo Failure to do sou i.e. to go on the leftu is pr1-~•1a facie negligence -Chaolin v. Ha•·1es (1828) 3C & Po5Sf.,. If one does drive on his of.i: side or on the nic.1dle of the ~coad, he must \:ee9 a better loo'~out a.nd ta\:e ;.nore care tt'lan he would ordinarily do ~-Jere he to drive on the near side 0 Again, the duty o.f each person who drives a road is to use rea~onable ca~e so as to avoid to pro9erty ~,,hich is on or aa.::oining the road. Parch said in Searle Vo ~allbank (1947) AC 341 a vehicle on causing darnag.e As Lord du at 3Gl~ "'lhe truth is that.: at least on country roads and in Farket tm-,ns u users of die hi g.nNay v _:.ncluding cyclists and r'Oto rists, rust be pcepared to ,-Qt~t fra·il tir:e to ti.r-:,e a stray horse or CCI',.-! o • o • 'Jne under lyj n::r orinciple of -c...1-ie la•_,-,1 of · the high~·.1ay is t!:iat all those l~wfull y using the highway ..•• :rust show rutua l resnect a-.10. forebearance. 'f'he 1.-oto rist mu.st put up ,·,7'.i_th tJ1e fa.r,~i=::.:-Vs cattle~ the fan;er -:-,ust endure the ;;rotorist." 7 '.>:'he duty o.c a :,~.otori~ t i.s to ta ::.e reasona.b '.e :_;a.re u such as :(eeping a 9000. loo\:out v avoiding e:~cessi ve s::::ieed, proper control of his vehicle and ohse:cving road 3ign.als o Hhat •1as i:he nosition in relation to t11e cJ.rive:i:s in this case? There is no doubt that the road at this point was curvingo Having visited the sc:ene of the acci(::.e,1t t'1e road is 1:dde enoU<J.h. for vehicles to cr0ss each other 9roperly. But as I stated earlier on, the road at this 9lac2 is slanting. ~he result is that vehicles coning fro~ Ntcheu soinq trn1ards Rasinje tend to ~eep to the correct si~e on this cu~veJ but vehicles coming froM I(asinje qoin9 to· 1ards i\ltcheu, beca.use o.f the inclination c also tend to ffiove on the sa0e side, i.e. to their righto The result is that if the c3.rive:.:-s are no·t ca.i.:·eful u an accident could easily occur ~ecause vehicles ~end to Move on that side of the road ir:resoeec.ive cf ·,rhere ~:t2y ;:;_re coF1ing from. It is the evidence m': bot}1 OiJ..ctie::, and their uitnesses that it ~,H:c:: the other vehi:::te thF.lt 1.·,1as fa.st a.nd took the o'cher side. From the evidence ~iich is before ~e I come to the conclusion that taking the conditi0~s of the road at this placer both drivers ~,1ere driving a·t a spes,.": ~,7)11-c:::1 ·,·:as fast having regard to the conch tion o:c the ro3C." Hoth of thern nere therefore negligent in this respect. I not1 conie to t11e r{ue.stion t·1l1ic~n .is ·_. ery ir--i.~oor·tant in deciding this case, ana th~3 to decid~ who was in the wrong. The evidence before me is ~his. Yhe plain~iff states that the defendant :too:c his side" l,;hile that o•:=-thG defendant is that the plain~:i ff too:,: hj_s sic.e. I have noiff:·:ed out earlier on that the rule of ·the ~cv3..0 is i:'1at on·-c:o:,iuq vehicles ;:nust keep to the left in ~rder co avoid a collision. In the pre3ent case I an. inclined t) :)2 l..i.eve the eviden( e oE the plaintiff for a nur1ber of :.:-ea:: on~., 0 Pirstlv u ·\:J--.,e o: '-lintiff 's witnesses v especially the evid2nce c~ Mr. Jlyar \1a; clear and una3biguous and, on the totalit\ 0£ the evidence I rrefer t~e evidence O.c t·ne plai·nt•c-r -., ~, -, ,; .. .., h l · · .,..1 .1. . J.i::,:. ,:,eco,1cLyr acc2r -c.11.s 0. Cc10.ent, t,. en aint1.t::: s vehicle ,?as on its (:orrect: s:i.dG anc I de not acceot the evidence of the defendant wh :n he stat2a thac th~ 1 ~aintifl0s vehicle ~,as pu""1 ~ ,_ • ... .... • ·• ' • · -; · 1 · -: ..,i1e0. ,_o .:n.s cr,rr(~CL... s:t.c\e D'./ :--us ~,E.._!:--:..1 .:<! .. 2. 'i.' 1e 001nt ot ir,lpact ,.-:ms'c ha.vs bet 11 on c:~:e 0)lai:1ti:L: 0:, ::;1.rect sid~o 'l'hirdlyr as I r,>ointed out ea.; J.ie,::-011 u :;rehicles en! ,tn'} fro .. ;1 Kasin:ie side tend to i1ove on th2 ricri1t hanci. side st .: 1:i.s co:cner because of the inclinationo I a.rt of the v:i.2u t.1 it t.:1at is e}:actly what the defendant , .:.d. -he too:·: tl'H" oJ. _r.tif:c Os side o:t ti1e road. :i:n ;'',.y consick :.-e<J opinion the:: c7.e::.:. 1 ldant •-JaS 75 % to blan.e and. the ",·. la5.nti· .:-_-_f_ ··.·.1 , ~-, .. .: 0 ·· • o ' l .c ' · ::i ,._ ::i I ,._ ,., -• .,_,ti 1:, o_ai"J.e ::D:r:-... .-e acc1.clen"t.: a.no. en1..er iudgrnent.accordinal ,. -• ~ ,., V T. no•,·7 ·'-,_,-!TD 'r" '·,...,e . . r. d ~ . 11 ,... . t -, c . ..., c,, c;1e.::,c1.on ca: a:·•:ac es, 2.. nJ. _ ): irs of al J deal ui th li, 1.\id.3_·:--.e,~-:. rl,o'..:_;:i.ages, 'I),, pla.i.nti:cf claims r firstly g the su"·1 of :-:lt., 7. :30 .:tS cost of: '. ... ·. ansoor t e·;menses i~curre<;1 by his <1L: c in tr a"ve 11 inc:;,· to ho _:;pi. ta l f ro.-a-· Bangt-1e u tnree ti~es a day fer 8~ days. He is al BO claininq XS.00 cost of Po!ice Reporto ~hese are special dar,ages. As such, the ru 1 e 1. s that they '~U ;; t s tr i c ·: J. y be "?"Cov, a hy con gent evidence. 8 In case of transport costs; apart from the fact that there is an arithmetical error, the figure beirig inflated by lOOlr there ~--!as no evidence to support this claim. 'J.'he wife did not co:::ne to give evidence and neither were there any documents to support the claim. 'i'he sane applies to the Police Report. There is no receipt and the report itself was not tendered and neither did the ;:1a:~er of the report co□e to give evidence o rrhese claims cannot therefore succeed. I will not turn to the question of general damages. The plaintiff who uas born on 2l-th October 1954 suffered, as a result of the accident, double fracture of the right femur and his leg is shortened by about 3/4 of an inch. He certainly has permanent disability, but to ,,;,1-1at e;.:tent is not clear in the evidence which is before ne. In relation to general damages r it t,·ras pointed .out in the case of British 'l.'rans:.>ort Com.r,lission v. Gourley ( 1955) AC 185 at 20G that: 11Seconcl.ly u there is general da;·,iages i•1hich the law .i.tQlies and is not specifically pleaded. 'l'his includeds c~nsa tion for pain and suffering and the lilce and if the inju ries suffered are such as to lead to oontinuing or perfm nent disability, ca1;,ensation for loss of earning power . in the future. 11 In assessing damages of this kind one has to take into account the type o:E injury and all the surrounding circm11stances. As Singleton L. J. said in Naldon v. tJar Office (195'5) 1 T'•JLR at 54-55i 11A judge in assessing clru;ag-es draws up:::x1 his 0vm expe rience. trere does he get that e>~Qe:dence? Fror11 lm0v.r ledge of other judges1 decisions as to a~nunt; fra.n !m~\1ledge o.[ F1hat is said in this Court and the House of I. Drcl.s and fra.'<.1 his ordinary e.>~1,:>erience in li. Ee. It "ould not be wrong for counsel apr,earing in such a case to say to a jli.dge ~ 0 I have here the report of a decision of the Court of A,~l on an appeal on darrages in a case very liJ~e this one' , and I have another case I have looked at some cases cited by counsel and I have also looked at some cases which have not been cited by counsel. I a.n also r'.1indful that I ha.ve found the plaintiff to be 25% · in the wrong. In the case of Magombo v. Attorney Generalu Civil Cause No.332 of 1982, I awarded a sum of KluOOO for paid and suffering. In Ellen Na1:::.anga v. Automotive Products and Wilson Pillane, Civil Cause No.800 of 1980, Skinner, C. J., as he was thenv awarded a su□ of ~36000 for pain and suffering and loss of amenities -she had a scar on ~he face as a result of a road 2-.ccident. In the case of Sagas;,ra v. City of Blantyre, Civil Cause No. 147 of 1935, r. at!arcl.ed a surn of IC6,000 for pain and suffering. In that case the plaintiff0s leg was 9/oo•o• . ,. 9 shortened by 1 cm. In the case of Chavura v. Chibisa and Halls Gara1e g Civil Cause No. 34 of 19r. J5 r Mbalar1e g J. awarded a sm1 of R~,500 for pain and suffering, dislocation of ankle and shortening of the leg ·with a 15% disablement. I am aware that these. cases are just. c1 guide of the thinking of the Courts in this country. Each case has to be assessed on its own merit. In the present case, I consider a sum of !',5, 000 to be adequate coEtpensation for pain and su.f fering and loss of amenities:· I accordingly enter judgment in the sum of KSrOOO for the plain tiff. He will also have costs for this action. Pronounced in open Court on this 16th day of January, 1991 at 3lantyre.