Zambia: Supreme Court
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RTF formatAUGUSTINE KAPEMBWA v DANNY MAIMBOLWA AND ATTORNEY-GENERAL (1981) Z.R. 127 (S.C.)
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SUPREME COURT
(S.C.Z. JUDGMENT NO. 4 OF 1981) |
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Flynote
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Evidence - Material evidence - Motor accident - Necessity to put before court all material evidence Civil procedure - Pleadings - Reference to evidence not pleaded - Proper course to take Civil procedure - Adjournment - Necessity to grant to enable party to produce material evidence in motor accident cases. Civil procedure - Appeal - Finding on facts - When Appellate court can interfere with finding. Damages - Appeal - Likelihood of appeal - Necessity for trial court to assess even where claim dismissed. Damages - Loss of use of property - Assessment of damages. Damages - Personal injuries - Injury to skull, rib, knee and tooth - Quantum |
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Headnote
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This was an
appeal by the plaintiff against a judgment of the High Court
dismissing his claim for damages for negligence against
the
defendants. The claim was based on a motor accident in which his
vanette was so badly damaged that it had to be sold
as a
write-off. p128
During the
trial a sketch plan was never produced on objection by counsel for
the plaintiff that it had not been disclosed
on discovery. Counsel
for the plaintiff objected to the second defendant's allegation
that the first defendant was dazzled
because the plaintiff had not
dipped his lights since this was not pleaded. He contended that
since this allegation was
only raised during his final submission
it should be excluded. In commenting on his apparent acceptance of
this evidence
the Commissioner said that this evidence had not
been challenged. However the Supreme Court decided to interfere
with the
Commissioner's findings on the facts on the ground that
the reason given for arriving at that conclusion were not
supported
by the evidence on record. As regards the
damages claimed, the Commissioner made no assessment because the
claim was dismissed. The plaintiff had claimed
damages for the
loss of use of his car, special damages and damages for injury to
his skull, rib, knee and tooth. Held:
p129
Cases cited:
For the respondent: A. S. Masiye, State Advocate. |
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Judgment
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GARDNER, AG. D.C.J.:
This is an
appeal by the appellant (to whom I shall refer hereafter as the
plaintiff) against a judgment of the High Court
dismissing a claim
for damages for negligence against the first and second
respondents (to whom I shall refer as the first
and second
defendants respectively). p130
The plaintiff signed judgment in default of appearance against the first defendant and the trial was between the plaintiff and the second defendant sued as representative of the Government of the Republic of Zambia, the employers of the first defendant.
The facts of
the case as adduced by the evidence were that the plaintiff was
driving along Kawama Road in Ndola in the direction
of Chifubu and
the first defendant, who was a soldier in the Zambia National
Defence Force, was driving an Army Land - Rover
in the opposite
direction. On the plaintiff's left there was what was described as
a bus terminal, that is a lay-by at the
side of the road where
buses parked. Shortly after the plaintiff passed this bus terminal
there was a collision between the
Land - Rover driven by the first
defendant and the vanette driven by the plaintiff, as a result of
which the plaintiff's
vanette was so badly damaged that it had to
be sold as a write-off, and he suffered some injuries, though
fortunately not
serious. The plaintiff
in his evidence said that he passed a bus which was parked at the
bus terminal off the road and he then saw
a motor vehicle coming
from the opposite direction. The time was 1915 hours. The other
motor vehicle left its correct side
of the road and came towards
the plaintiff's side hitting his vehicle and continuing so that it
landed in a ditch which was
on the plaintiff's side of the road.
The second witness for the plaintiff, Henry Tembo, a salesman,
said that he had known
the plaintiff for a number of years, and on
the night in question he received information as a result of which
he went to
the scene of the accident. He found the two vehicles on
the left-hand side of the road facing Chifubu, and he said that
the
Army vehicle was in the ditch whilst the plaintiff's vehicle
was facing away from the road. He confirmed that the bus terminal
was approximately forty yards away. In cross-examination he said
that he saw pieces of broken glass almost in the middle
of the
road but on the left side of the middle line facing Chifubu. The first
defendant gave evidence that he was driving along the Kawama Road
away from Chifubu, and before he reached a bus
terminal on the
other side of the road he saw a vanette, which was coming in the
opposite direction, overtake a stationary
bus. The lights of the
vehicle dazzled him. There was a ditch on his left and he swerved
towards the middle of the road.
The other vehicle was still coming
so he decided to stop and he did not know what happened next. In
cross-examination he
said that he did not lose control of his
vehicle but he did not know where he was going because he was
dazzled. He also said
that the front part of the bus at the
terminal was in the road. The defence called one witness,
Inspector Wiseman Kalonga
of the Zambia Police, who said that he
went to the scene of the accident at 2000 hours and found the Army
vehicle was off
the road and the vanette belonging to the
plaintiff was on the road. He observed broken glass almost on the
centre of the
road but he did not say on which side of the centre
line the glass was found. He reasoned that this was the point of
impact.
This witness said that he had prepared a sketch plan and
was prepared to produce it in court, but Mr p131
Mwanawasa for
the plaintiff objected that it had not been disclosed on
discovery. The court upheld the objection and the sketch
plan was
never produced to the court. We should mention here that, as we
have said many times in the past, when a case concerns
a motor
accident all possible material evidence should be put before the
court, and in this 5
case the proper course, after Mr Mwanawasa's objection, would
have been to offer him an adjournment if he was taken by surprise,
the costs to be paid by the defendant, and then to allow the
sketch plan to be produced. The learned trial Commissioner in his judgment said:
The learned
trial Commissioner then found that the plaintiff had not adduced
enough evidence to show that the collision occurred
because of the
defendant's negligent driving and he dismissed the plaintiff's
claim. On behalf of the plaintiff Mr Mwanawasa argued before this court that, in his defence, the second defendant had not pleaded the allegation that the first defendant was dazzled because the plaintiff had not dipped his lights. He argued that he had raised this matter in his final submission to the trial court and that the evidence as to being dazzled by lights should be excluded. He cited the case of Jere v Shamayuwa and Attorney-General (1), in which, at page 206, Bruce - Lyle, J.S., quoting from Re Robinson Settlement, Grant v Hobbs (2), and commenting on a situation where a defence not pleaded is let in by evidence and not objected to by the other side said:
This
conclusion was criticised by Mr Mwanawasa, and this court was
referred to a number of cases in which the absence of pleadings
were fatal to a plaintiff's case. In particular, we were referred
to the case of Waghorn v Geo.
Wimpey & Co. Ltd. (3), in
which Lane, J., held that where a plaintiff's version of the facts
was not just a variation of the pleadings but
was something new,
separate and distinct and not merely a technicality, there had
been so radical a departure from the pleaded
case as p132
to disentitle the plaintiff to succeed. I have considered the application of that case to the case at present before this court and note that the facts of that case were that the plaintiff first of all claimed that an earth bank near which a caravan was parked was unsafe and this had caused him to slip. In his evidence the plaintiff said that in fact he slipped on a path on the other side of the caravan. In considering whether this was a new allegation or a mere variation of the original pleading the learned judge had this to say at p. 1771:
In my view,
the Waghorn case
(3) is distinguishable from the present one in that the answer to
the question put by Lane, J., would undoubtedly be
"No".
No evidence other than that of the plaintiff himself could have
been led to support an allegation one way
or the other as to
whether he had failed to dip his headlights, and the plaintiff's
conduct of his case could have been no
different. In my view, the
proper course for the plaintiff's advocate to have taken would
have been to object immediately
to the first defendant's reference
to his being dazzled. Thereupon it would be the duty of the court
to decide whether or
not it was necessary to grant an adjournment
to the plaintiff, and whether to allow an amendment of the
pleadings subject
to an order for costs against the defendant. Mr
Mwanawasa also argued that, as the plaintiff was not
cross-examined as to
the dipping of his headlights, this is
another reason for excluding the evidence of the first defendant
about this aspect
of the matter. The proper course for the
plaintiff's advocate to have taken in the circumstances was to
apply to recall the
plaintiff to rebut the unexpected evidence of
the first defendant. This course was not taken and, in my view,
the evidence
was let in and fell for consideration under the
principles set out by Bruce - Lyle, J.S., in the Jere
case (1). The matter does not stop there however. In considering
the credibility of the witnesses the learned trial Commissioner
should have taken into account the fact that the alleged dazzling
not having been pleaded, and the plaintiff not having been
cross-examined thereon, it was apparent that the first defendant
had never referred to this allegation before when he must
have
been interviewed by the State Advocate. The learned trial
Commissioner should have taken this into account when assessing
the credibility of the first defendant. When cross-examined the
first defendant said that he had seen the bus before the
plaintiff's vehicle came on the scene. Having regard to the act
that the accident occurred some forty to sixty yards from
the bus
it is difficult to believe that the plaintiff's vehicle was not
already at the scene when the first defendant first
saw the bus.
That being the case, if the lights of the plaintiff's vehicle were
not dipped and the first defendant was so
dazzled that he did not
know where he was going he would not have been able to see the bus
and p133
recognise it
as a bus. It must be borne in mind that, after the accident, the
first defendant said that he was unconscious
and that he did not
recover consciousness until he found himself in hospital, so he
could not have seen the bus after the
accident. In commenting on his apparent acceptance of the first defendant's evidence as to being dazzled, the learned trial Commissioner said that the evidence in this respect had not been challenged. This was a misdirection on the facts. The record clearly shows that there was cross-examination of the first defendant about his being dazzled. In all the circumstances, although this court is slow to interfere with a finding of fact made by a trial court, which has the opportunity and advantage of seeing and hearing the witnesses, I am quite satisfied that this is a case where the finding as to the credibility of first defendant should be discounted. In discounting such evidence I follow the principles set out in the case of Nkhata and Others v The Attorney-General (4), where, at p. 125, the court of Appeal said:
These
principles extend the three similar principles set out by Blagden,
J.A, in the case of Mbavu and
Others v The People (5), at
p.169. As to the main
issue on appeal as to whether the plaintiff adduced enough
evidence to show the collision occurred because
of the first
defendant's negligent driving, the reasons given by the learned
trial Commissioner for his arriving at this
conclusion are not
supported by the evidence on record. It is not pleaded nor does
any of the evidence suggest that the plaintiff
was anywhere but on
his correct side of the road. The learned trial Commissioner
however founded that the first defendant
p134
acted
reasonably when he swerved towards the middle of the road in order
to avoid a head-on collision. This conclusion cannot
be supported
at all. Even if the first defendant had been dazzled in which
event the question of contributory negligence
might arise, it
cannot be said that it was the action of a prudent driver to
swerve to his right into the path of an oncoming
vehicle on its
correct side of the road. As I have said, I would reject the
evidence of the first defendant as to his being
dazzled. The learned
trial Commissioner finally misdirected himself when he said the
point of impact does not conclusively indicate
on which side of
the road the defendant's vehicle was when the collission occurred.
In arriving at this finding he completely
ignored the evidence of
PW2 that he found broken glass, which would indicate a point of
impact, almost in the middle of the
road but on the plaintiff's
side of the middle line. The defendant's witness also said that
the glass was almost on the centre
of the road but was not asked
on which side of the centre line it lay. In the circumstances, the
evidence most definitely
indicated that the point of impact was on
the plaintiff's correct side of the road. I have no hesitation in
finding that
the first defendant's conduct in swerving to the
right, to the wrong side of the road from his point of view, was
not that
of a prudent driver, and that the evidence clearly
indicates the negligence of the first defendant. In view of the
fact that
I have indicated that I would reject the evidence of the
first defendant's being dazzled, there is no question of
contributory
negligence on the part of the plaintiff and I would
allow this appeal and give judgment for the plaintiff. I now come to
the question of damages. As has been said in the past, when there
is a likelihood of an appeal, it is proper
for a trial court to
assess the damages which would have been awarded had judgment been
found in favour of the plaintiff.
This was not done in this case
and it therefore falls for this court either to send the case back
to the Registrar of the
High Court for an assessment of damages,
or make the assessment itself from the facts adduced in the
record. The plaintiff
gave evidence that he purchased his vehicle
in 1972 for K1,200, that it was in good running order up to the
time of the collision,
that he had hoped to sell it for K1,150 in
1974, and in view of the fact that the vehicle was irreparable he
had to sell
it as scrap for K200. No documentary evidence or
independent assessor's evidence was brought to substantiate this
claim by
the plaintiff, and in the normal course of events his
claim in respect of this damage would be dismissed or sent to the
District
Registrar for a assessment after hearing further
evidence. However, it is appreciated that a long time has elapsed
since
the vehicle was available for inspection after the accident,
and without in any way intending to set a precedent for relaxing
the usual rule that detailed evidence must be given in support of
such special damages, I feel that in equity, the plaintiff
should
not be deprived of such damages as can be assessed from the
evidence which has already been given and not discredited.
There
is no reason to disbelieve the plaintiff when he said that he
purchased the vehicle for K1,200 in 1972, and although
he had used
the vehicle for p135
two years
before the accident, in which case in the ordinary way it should
have depreciated, I would take judicial notice
of the fact that,
in this country, in view of the shortage of new motor vehicles,
second-hand vehicles have in fact appreciated
in value. The
plaintiffs estimate of K1, 150 as the value that he would have
hoped to have received must be compared with
an estimate of K450
which he hoped to receive for the vehicle when he sold it as
scrap. In fact he only received K200 for
the vehicle in this
condition. Doing the best I call therefore on the evidence
available, I would value the vehicle at the
time of the accident
At K1,000, deduct from that sum of K200 obtained by selling the
vehicle as scrap, leaving a balance
of K800, which I would award
to the plaintiff under this head. The learned
State Advocate at the trial agreed with the second two items of
special damages, that was the cost of towing a
motor vehicle K10,
and taxi to hospital K15 making the total of special damages
K825. The plaintiff
further claimed damages for loss of use of his vehicle and said
that he started spending K20 per month in January
1977 when one of
his children went to Form I, and continued to spend money on
transport for four children. In view of the
fact that the
plaintiff's vehicle was beyond repair there was no question of
assessing damages for a period whilst it was
being repaired. There
was no evidence that no similar car was available immediately to
replace the plaintiff's vehicle, and
no evidence on which any
court could ascertain whether or not the plaintiff did anything to
mitigate his damages under this
head. It is quite obvious that a
person whose car is so damaged that it is beyond repair cannot
claim loss of use forever,
and in default of any other evidence it
is quite impossible for any court to make an assessment of
damages. Under this head
I would award nominal damages of K10
under the principle set out in the case of Mediana
(Owners) v Comet (Owners). The
Mediana (6),
that is to say, that where a man is deprived of the use of his
property by the wrongful act of another a claim for damages
may be
sustained and damages in such a case are real and not merely
nominal even though no actual pecuniary lose is proved.
In
awarding the nominal sum to which I have referred I am assuming
that it would have taken some time - I cannot hazard a
guess as to
what length of time - for another similar vehicle to be found on
the second-hand market. As to general
damages the plaintiff called a doctor who gave evidence that the
plaintiff suffered a lacerated wound on the
left parietal area of
the skull about one inch in length and skin-deep; another
laceration of the lower rib and left knee;
a fracture of the
fourth rib, one tooth had fallen out and two others were broken,
and the plaintiff was treated as an out-patient
at the hospital
from the 2nd of June (the day of the accident) until the 10th of
June, 1974. The doctor gave as his opinion
that the plaintiff must
have been feeling pain while eating for the first five to six days
and pain for a few days because
of the broken rib which had
healed. In a cross-examination the doctor agreed that the injuries
were minor. Mr Mwanawasa
referred the trial court to a number of
cases dealing with p136
similar
injuries, and in particular the case of Sharod
v Bowles (7). Having considered
these cases and others I would award as general damages for
personal injuries the sum of K500. I would allow
this appeal, set aside the judgment of the learned High Court
Commissioner, and award to the plaintiff a sum
of K825 special
damages and K510 general damages, being K500 for personal injuries
and K10 for loss of use. Following the
principles set out in the case of The
United Bus Co. of Zambia Ltd. v Shanzi (8),
at p. 421, I would award interest at the rate of seven per cent on
the general damages of K510 from the date of service
of the writ
to the date of this judgment, and interest at the rate of
three-and-a-half per cent on the special damages of
K825 from the
date of the accident (the 2nd of June, 1974,) to date of this
judgment. Costs should
follow the event, that is to say, the second respondent is to pay
the costs in this court and the court below. Judgment
BRUCE-LYLE, J.S.: I
concur. Judgment CULLINAN, J.S.: I also concur.
Appeal allowed |
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