Magwede v Mwapasa t/a P& (Civil Cause 1292 of 1998) [2001] MWHC 117 (23 August 2001)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1292 OF 1998 BETWEEN: SOPHIE MAGWEDE...........oooioviooeiioeoeoeeee PLAINTIFF D EMWAPASA 1/ P& ..o DEFENDANT -VS- CORAM: MRS I. KAMANGA, DEPUTY REGISTRAR Mrs Movete, Counsel for the Plaintiff RULING This is the plaintiff’s application for summary disposal of a case on a point of law under Order 14 of the Rules of the Supreme Court. Order 14 of the Rules of the Supreme Court provides that a court may law or construction of any document arising determine any question of “without a full trial of the action” where it appears to the court that such determination will finally determine the proceedings that are before that court. The Order also provides that the following requirements have to be met before an application can be entertained. (a) the defendant must have been given notice of intention to defend. (b) (c) (d) the question of law or construction is suitable for determination without a full trial or action. such determination will trial as to the entire cause or matter or any claim or issue therein. the parties had an opportunity of being heard on the question of law or have concerted to an order or judgment being made on such determination. The background is as follows:- A writ was issued against the defendant in which the plaintiff is claiming damages under the Workers Compensation Act of 1990 due to the death of the plaintiff’s husband Alex Magwede. Alex Magwede was employed by the defendant as a bus driver. He died in a road accident in the course of his duties whilst driving the defendant’s motor vehicle BK 3506. The plaintiff alleges that the motor vehicle, a Toyota Hiace Min Bus, which the deceased was driving from Blantyre Mangochi had a type burst and consequently overturned. The defendant disputes that the accident occurred due to a tyre The defendant in his defence contends that the accident happened burst. The particulars of the negligence because the deceased was negligent. include that the deceased was driving too fast in the circumstances and that he failed to stop, slow down, to swerve or in any other ways so as to manage The defendant or control the min-bus as to prevent it from overturning. claims that as the death of the deceased came about due to his negligence, the said death arose out of deliberate self-injury on the part of the deceased. Consequently, the deceased is not liable to pay any compensation by virtue of section 4(2)(b) of the Workers Compensation Act. the per of the affidavit plaintiffs. The plaintiff then made this application for summary disposal of the matter on appoint of law. A notice of adjournment was set to the defendant by post The defendant never put any as appearance, nor did the defendant give explanation for his absence. Hearing of the application thereby proceeding in the defendant’s absence. Before the proceeding to the application to the application, this court has to decide whether the application satisfies the requirements that are provided under Order 14. From the discussion on the background of the matter, it can be noted that a notice of intention to defend was given by the defendant. The parties were also given an opportunity of being heard and the defendant shall point result of law or action. in The issue in this matter whether opted not to make use of this opportunity. The other requirement is that the question of law or construction is suitable for determination without a full trial The issue for consideration in this particular matter is whether the matter at hand is not based on evidence but a point of law, and trial whether the determination of that determination of the whole case. the accident was occasioned due to a tyre burst or due to the nature of driving of the deceased i.e. driving too fast in the circumstances so as to be said to be negligent. This is not a question of law. It is a question of fact. This matter on determination of whether under the Workers does not Compensation Act, the deceased is precluded from claiming Compensation under the said act, nor that death due to his negligence precludes him from claiming under the act. It also does not solely lie on whether the reading of of the Workers Compensation Act the nature of the alleged section 4 negligence of the deceased could be said to constitute serious and willful misconduct as envisaged by that section. This matter also lies on evidence, as already noted, the issue of whether the accident was caused due to the It therefore does not fall solely burst or driving too fast by the deceased. within the ambits of the Workers Compensation Act 1994. The matter therefore ought to go for full trial for better determination of the same. solely rest The application for summary disposal on a point of law therefore fails. MADE in Chambers this 23" day of August, 2001. b—o- Mrs . Kamanga DEPUTY REGISTRAR OF HIGH COURT AND SUPREME COURT OF APPEAL