Gonda v Ismail, Afrishere Worldwide Limited and General Alliance Insurance Limited (Personal Injury Cause 99 of 2015) [2018] MWHC 1303 (27 June 2018)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISRTY PERSONAL INJURY CAUSE N0.99 OF 2015 BETWEEN TAURAI GONDA ................................................... ........... PLAINTIFF -AND- FARID ISMAIL. .................... ............. .......................... 1 sr DEFENDANT AFRISHERE WORLDWIDE LIMITED .................. ............. .. 2ND DEFENDANT GENERAL ALLIANCE INSURANCE LIMITED............ . ...... JRD DEFENDANT CORAM: THE HONOURABLE JUSTICE CHIRWA Dr Nkhata of Counsel, for the Plaintiff The 2nd Defendant not present Mr 0. Chitatu, Official Court Interpreter JUDGEMENT By a Writ of Summons, Specially Endorsed, issued on the 91h day of Marc h 2015, the Plaintiff brings this action against the above nam ed Defendant's claiming (a) damages for the costs of repairing his motor vehicle registration No BL 8885, Mercedes Benz Saloon) (b) special damages in the sum of K3, 000.00 being the costs of obtaining the Police Report, (c) damages for the loss of use and (d) costs of the action. Statement of the cases for the parties: It is the Plaintiff's case as per his Statement of Claim that on or about the 22nd of October, 2014, the 2nd Defendant's motor vehicle registration number MN 281 7, DAF Truck, whilst being driven by the 1 st the direction of Chinyonga heading towards Defendant from Chitawira along the Kenyatta Drive hit from behind the Plaintiff's said vehicle which was also going in the same direction as the 2nd Defendant said motor vehicle at Njamba Stage. It is the Plaintiff's case further that the said accident was solely caused by the negligence of the 1 st Defendant who was at the material time the driver of the 2nd Defendant's vehicle. The particulars of the alleged negligence have been provided as follows : (i) (ii) (iii) Following the Plaintiff's' vehicle too closely in the circumstances; Failing to keep any or any proper look out or to have any sufficient regard in particular the Plaintiff's said vehicle; Failing to slow down, stop, swerve, or in any way to manage or control the 2nd Defendant's vehicle, so as to avoid hitting the Plaintiff's vehicle. to other users It is the Plaintiff's case still further that as a result of the accident/ collusion his vehicle sustained extensive damage. The particulars of damage have been provided as follows: (i) Depressed boot (ii) (iii) (iv) (v) (vi) (vii) Depressed bumper Depressed bumper brackets Depressed boot floor Dislocation of the right leg Broken left hand tail lamp Broken right hand tail lamp And the particulars of the special damages have also been provided as follows: ( i ) K3, OOO. 00 being the cost of the police report. By their joint Defence to the Statement of claim dated the 1 7th day of January, 2015, the 3rd Defendant, while admitting that it insured the 2nd Defendant's motor vehicle contends that any liability on its part arising from such insurance is limited to the maximum cover taken out under the policy. It is the 3rd Defendant's contention further that since the Plaintiff has not established that there is any amount due from the insured to the Plaintiff no cause of action has therefore accrued against it. In the alternative the Defendants have jointly denied that the accident/collusion was caused by negligence on the part of the 1 st Defendant as alleged in the case. It is the Defendants' case that the said collision was caused solely or contributed to by the negligence of the Plaintiff. The particulars of the alleged negligence have been provided as follows: "(i) Driving too fast in the circumstances; (ii) Failing to keep any or any proper look out or to have any or any sufficient regard for other motor vehicles along a busy road; (iii) Failing to heed the presence of the 2nd Defendant's vehicle along the road; (iv) Driving along a busy road without first ascertaining or ensuring that it was safe so to do and when he knew or ought to have known that it was unsafe so to do by reason of the presence of the 2nd Defendant's vehicle; (v)Abruptly stopping in the road in the path of the 2nd Defendant's vehicle without warning; (vi) Failing to swerve or in any other way to manage of control his vehicle so as to avoid the collision." The Defendants have finally denied that the Plaintiff suffered the injury, loss of damage as alleged. When this action was called for trial on the 24th day of May, 2018 only Counsel for the Plaintiff and the 3rd Defendant were present. This Court was advised by both Counsel that the 3rd Defendant had satisfied its liability unde r the policy of insurance. Th e l st and th e 2nd De fendants were not present and neither did they proffer any excuse for their absence . This Court being satisfied that the Notice of Hearing appointing the said date of hearing had been duly served on the 2nd Defendant, and given that Counsel for the Plaintiff had el ecte d not to proceed against the l st Defendant, proceeded to hear the Plaintiff's case after striking out the 2nd Defendant's Defence in terms of Order 16 Rule 7(1) C of the Courts (High Court) (Civil Proc edure ) Rul es whic h provid e s a s follows: "7 the Court may proceed with a trial in the absence of a party but (c) where a defendant does not attend, it may strike out his defence and dismiss his counter claim" The Burden of Proof and Standard of proof: This Court is mindful, that the burden of proof in a civil action rests on the party who asserts the affirmative, hence the latin maxim: ei qui affirmat non ei qui negat incumbit probation:.see: Joseph Constantine Steamshipline v Imperial Smelting Corporation Ltd [1942] AC 154 at p.17 4 and Limbe Leaf Tobacco v Chikwawa & Others [1996] M. L. R. 480 at p484 per Unyolo J. A. (as he then was). This Court is also mindful, that the standard of proof in a civil action is merely on a balance of probabilities- see: Miller v Minister of Pensions [1947] All E. R. 372 at p374 per Denning M. R. and Chinyama v Land Train Haulage [1999] M. L. R. 99 at p 102 per Ndovi J. Issues for determination: This being an action founded in negligence, for the Plaintiff to succeed he ought prove the following: (a) That there was a duty of care owed by the 1 st Defendant to him, (b) That there was a breach of that duty by the l st Defendant and (c) That damage resulted from that breach of duty, - See: Donoghue v Stevenson [ 1932] A. C 562 quoted with approval by Ndovie J in Kadawire v Ziligone and Another [ 1997] 2 M . L. R 139 p 144. The Evidence: To prove his case, the Plaintiff only called one witness, the Plaintiff himself PWI. PWl adopted his written statement and produce Exhib it "P l " , the Malawi Police Abstract Report dated the 8th of December, 2014, Exhibit "P2", a Quotation for Mercedes Benz Reg. No. BL 8885, from Fernando Motors dated the 24th of March, 2015, and Exhibit " P3 " a Quotation dated March 24, 2015 for Mercedes Benz C 180 BL8885 from City Motors Ltd as his evidence in-chief. There was no cross examination . This Court will refer to the evidence before this Court in the determination of the various issues to be determined herein Determination: The first issue to be determined is: "did the 1 st Defendant owe the Plaintiff a duty of care?". The authorities abound that a driver of a motor vehicle owes a duty of care to other road users not to cause damage to persons, vehicle and property of anyone on or adjoining the road- see: Banda & Others v ADMARC & Another [1990] 13 M. L. R. 59 at 63) and Kachingwe & Kachingwe & Company v Mangwiro Transport Motor Ways Company Limited 11 M. L. R. 362 at p367. Turning to th e e vidence before this Court PW l the following was the evidence of PW l as per his written statemen t: "3. On or about the 22nd October, 2014, I was driving my said motor vehicle registration number BL 8885 Mercedes Benz Saloon, from the direction of Chinyonga heading towards the direction of Chitawira along Kenyatta Drive. 4. Upon arrival at or near Njamba Bus Stage my said motor vehicle was hit from behind by motor vehicle registration number MN 2817, OAF Truck which was travelling in the same direction as myself. 5. The said motor vehicle registration number MN 2817, OAF Truck which was being driven by the l st Defendant and was owned by the 2nd Defendant," There was no evidence adduced to contradict this evidence and neither was there any cross examination to contradict the same. From this evidence it is evident that the Plaintiff as a driver of motor registered number BL 8885 and the l st Defendant as a driver of the said motor vehicle registration number MN 2817 were at the material time both road users. As such they both owed a duty of care to each other. In answer to the issue above, it is the finding of this Court that the l st Defendant as the driver of the said motor vehicle at the material time indeed owed the Plaintiff a duty of care. The second issue to be determined is: "did the 1 st Defendant breach the said duty of care." On the duty of care which a driver of a motor vehicle owes to other road users Mtegha J (as he then was) in the case of Kachingwe & Company v Mangwiro Transport Motor -Ways Company Limited (supra) quoting with approval the following words of Lord Mac Millan in Hay or Bourhill v Young [1943] A. C. 92 at l 04, "What duty then was incumbent on him? [T]he duty of a driver is to use proper care not to cause injury to persons the highway or in premises adjoining the highway proper care connotes a avoidance of excessive speed, keeping a good look-out, observing traffic rules and signals and so on .... There is no absolute standard of what is reasonable and probable. It must depend on circumstances and must always be a question of degree," went on to state as follows: - "It is the duty of a person who drives a motor vehicle on a highway to use reasonable care to avoid causing damage to persons and other vehicles on or adjoining the road. It has been further stated that reasonable care means care which an ordinary skilful driver would have exercised under all the circumstances .... " See also the case of Jussab vs Mussa & Another [ 1991] MLR 116 at p. l 22 ( cited in the Plaintiff's skeleton arguments at p3). The evidence of PW l as to how the accident was caused is as follows: "6. The accident was caused by the I st Defendant by among others, following too close .. ... " The foregoing evidence remained uncontroverted. It has been held that when approaching potential danger, a driver of a motor vehicle is obliged to travel at a speed slow enough to enable him to stop in time if a sudden emergency arises (see: Mandiwa & Others v Star International Haulage Company Ltd & Another [1991] 14 M . L. R . 217 at p225). The general rule is that a vehicle should be driven at a speed which enables the driver to stop within the limits of his vision (see: Burgess V Aisha Osman & Jimu [1964 -66] ALR (Mai) 475) . The fact that the 1st Defendant failed to stop in time to avert th e a c cident is also in consonance with th e fa c t tha t the 1 st Defendant was speeding- see: Kadawire v Ziligone & Another (supra) relying on the case of Republic v Sinambale 4 A. L. R. (Mai) 191 where it was held that it is the driver's duty to drive at a speed which will allow him to stop in case of sudden em e rg e nc y . This Court is inclined to concur with Counsel for the Plaintiff in his submission that the fact that the l st Defe ndant hit the Plaintiffs motor ve hicle from behind is e vident enough tha t th e 1 st Defe ndant w a s following too close behind the Plaintiff's motor vehicle and that the first Defendant was not driving a t a speed slow enough to enable him to stop in case of an emergency. In answer to the question at hand, this Court is inclined to find a s a fact that the 1 st Defendant as a driver of motor vehicle registration number MN 2817, DAF Truck, at the material time breached his duty of c are to th e Plaintiff as another road use r. The third issue for determination is: "did the Plaintiff suffer damage as a result of the said breach of duty of care?" The evidence of the PW l in support of this issue is to be found in paragraph 7 of his written statement and it is as follows: "7. As the result of the collision referred to at paragraph 4 above, my said motor vehicle had its boot, bumper, bumper brackets and boot floor depressed; and the left and right tail lamps broken". This evidence also remained uncontroverted. This Court has no reason to disbelieve the Plaintiff in his evidence on the extent of the damage caused to his motor vehicle. In answer to the question at hand, this Court is inclined to find as a fact that the Plaintiff suffered damage as a result of the breach of his duty of care by the l st Defendant. The Plaintiff having successfully proved the three ingredients of negligence on the part of the l st Defendant, this Court would, in the premises, not hesitate to find the l st Defendant guilty of negligence. And since the there is no dispute that the motor vehicle which the l st Defendant was at the material time driving the property of the 2 nd Defendant this Court would, in further premises, enter a judgement for the Plaintiff against the 2nd Defendant as the owner of the said motor vehicle. the The judgment entered herein is for damages for the Plaintiff's said motor vehicle and loss of use. As regards the special damages in the sum of K3,000.00 alleged to be the cost for obtaining the Police Report (Exhibit "P l "), the same being a claim for special damages ought to have been proved strictly - See: The Registered Trustees of African International Church v The Registered Trustees of African Church [ 1994] MLR 271 at p280. And since the Plaintiff has not strictly proved the same a judgment can thus not be entered for the same. This claim is consequently dismissed. The Costs: The costs of an action are in the discretion of the Court (See: Section 30 of the Courts Act) and normally follow the event (See: Order 31 Rule 3 (2) of the Courts (High Court) (Civil Procedure) Ru les and also the case of Matanda v Sales Services Limited [1990] 13 M . L. R 216 at 218. The 2nd Defendant being the unsuccessful party in this action this Court thus proceeds to exercise its discretion on costs by ordering the 2nd Defendant to pay the costs of the Plaintiff. It is so ordered. Dated this 27th day o f~ , 2018. -wJL, 11