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MALAWO (MALE) v BULK CARRIERS OF ZAMBIA LIMITED (1978) Z.R. 185 (S.C.)
SUPREME COURT
CHOMBA, GARDNER AND BRUCE-LYLE, JJJ.S.
15TH JUNE, 1977 AND 12TH JUNE ,1978
(S.C.Z. JUDG MENT
NO. 24 OF 1978)
Flynote
Evidence - Witness
- Credibility of witness - Findings of fact based on - Whether appellate court will interfere.
Tort - Negligence
- Contributory negligence - Apportionment of blame - Causation and
blame-worthiness both to be taken into account.
Headnote
A vehicle owned by
the respondent (the plaintiff below) came into collision with certain cattle
owned by the appellant (the defendant). The trial court made certain findings
of fact adversely to the defendant based on the credibility of the witnesses.
On the facts as found the trial court apportioned the blame as to 75 per cent
on the defendant and as to 25 per cent on the plaintiff. The defendant advanced
two grounds of appeal: first, that the trial judge erred in rejecting certain
evidence given on behalf of the defendant, and second, that he erred in his
apportionment of blame.
Held:
(i) Where questions of credibility are
involved, an appellate court which has not had the advantage of seeing and
hearing witnesses will not interfere with findings of fact made by the trial
judge unless it is clearly shown that he has fallen into error.
Kenmuir v Hattingh (1) followed.
p186
(ii) Whilst causation is a decisive factor in
determining whether there should be a reduced amount payable to the plaintiff,
the amount of the reduction depends not only on the causative potency of a
particular factor but also on its blame-worthiness.
Dictum of Denning, L.J., in Davies v
Swan Motor Company Limited (2) adopted.
(iii) On the facts as found the plaintiff was
two-thirds blame-worthy and the defendant one-third.
Cases cited:
(1) Kenmuir v Hattingh (1974) Z.R. 162.
(2) Davies v Swan Motor Co. Ltd [1949] 1 All
E.R. 620.
Legislation
referred to:
Law Reform
(Miscellaneous Provisions) Act, Cap. 74, s. 10 (1).
Law Reform
(Contributory Negligence) Act, 1945 (England).
Roads and Road
Traffic Act, Cap. 766, s. 234 (4).
For the appellant: H.K. Smallwood, Smallwood & Co.
For the
respondent: B.C. Mutate, Ellis &
Co. 10
Judgment
CHOMBA, J.S.:
delivered the judgment of the court.
The appellant in
this case was the defendant in an action arising from a motor traffic accident
involving a motor vehicle belonging to the respondent (who was the plaintiff at
the trial) and the appellant's cattle. For the sake of convenience I shall
refer to the appellant as the defendant and the respondent as the plaintiff.
It was common
cause that on the 10th April, 1974, a Kenworth truck and trailer belonging to
the plaintiff and driven by the plaintiff's driver, Evaristo Mulando, was
travelling along the Ndola/Kitwe road from Luanshya and at the same time a herd
of forty-eight head of cattle was moving on that road in the opposite
direction. The cattle were in the care and control of five drovers employed by
the defendant. When the cattle were crossing a bridge at Chamboli Stream, a few
kilometres from the heart of Kitwe, the plaintiffs driver was also driving down
a slope towards the same bridge and in the result a collision occurred in which
a number of animals in the herd were killed or so badly injured that they had
to be destroyed; the Kenworth truck and trailer were forced off the road and
overturned, resulting in irreparable damage to both. The plaintiff sued on the
ground that the defendant was vicariously liable for the negligence of his
servants in controlling the cattle while they were on the highway,alleging that
they drove the cattle at night on the highway without lights to warn
approaching traffic of their presence. While denying negligence the defendant
counter-claimed, and alleged that the plaintiff's driver was the negligent
party in that he mismanaged the plaintiff's motor vehicle while driving on the
road.
The learned trial
judge, after a full hearing of the evidence, found both parties to be at fault
and apportioned their blame-worthiness: he
p187
in found the
defendant to have been 75 per cent blame-worthy and the plaintiff 25 per cent. Having calculated the composite
damage suffered by both parties he then awarded each party damages according to
his percentage of blame-worthiness.
The defendant's
counsel submitted two grounds of appeal in this court and these were:
"1. the learned Judge erred in rejecting the
evidence of the Defendant and his witnesses as to whether or not the sun had
set at the relevant time and in accepting that the Plaintiff''s tanker had left
Luanshya at 1745 hours;
2. the learned Judge erred in apportioning the
blame for the collision between the tanker of the Plaintiff and cattle of the
Defendant as to 75% that of the Defendant and 25% that of the Plaintiff."
Both these grounds
were fully argued before us.
Regarding the
first ground, this court held in Kenmuir v Hattingh (1) that where questions of
credibility are involved, an appellate court which has not had the advantage of
seeing and hearing witnesses will not interfere with findings of fact made by
the trial judge unless it is clearly shown that he has fallen into error. In
the present case having seen and heard the witnesses the learned trial judge
was fully entitled to disbelieve the defendant and those of his witnesses who
said that the accident from which this case arose happened before sunset.
Moreover, the defendant swore that when he got to the scene after the accident
had occurred his cattle drovers had already left. He also averred that at the
time of his arrival the sun had not yet set. His evidence on that point is
however in direct conflict with that of the drover, Charles Mvula, who said not
only that the accident happened after sunset but also that when he left the
scene it was very dark. This evidence of Mvula reflected very adversely on the
credibility of the defendant particularly on this point. In the light of this
and having regard to all the evidence before the learned judge, we are not
surprised that he found adversely against the defendant on this point.
Moreover, this court did not have the advantage of seeing the witnesses to
assess their credibility and since the finding that is impugned is one which
was arrived at by the learned judge in consequence of assessing the witnesses'
credibility this court feels bound to follow it. The first ground of appeal
therefore fails.
As already shown,
in this case there were counter-claims by the parties and in his judgment the
learned judge in the court below apportioned the blame. The position in this
case is analogous to that which obtains when a plaintiff sues in negligence and
a defendant counter alleges that the plaintiff contributed to his own injury.
This analogy is justified on the basis that the judge's decision in the present
case amounted to a determination that each party's injury was occasioned partly
by his or its own contributory negligence. In order to apportion damages in a
case turning on contributory negligence a court would have to have recourse to
the provisions of s. 10 sub-s. (1) of the Law Reform (Miscellaneous Provisions)
Act, Cap. 74 of the laws. This section provides as follows, to the extent that
it is relevant to the present case:
p188
"10. (1) Where any person suffers
damage as the result partly of his own fault and partly of the fault of any
other person or persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the damage, but the
damages recoverable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant's share in the
responsibility for the damage."
I note that this
section is an exact reproduction of s. 1 sub-s. (1) of the English Law Reform
(Contributory Negligence) Act 1945. Davies v Swan Motor company Limited (2) was
a case which fell to be decided, as regards the question of apportionment of
damages, under sub-s. (1) of the said Law Reform (Contributory Negligence) Act
1945. Denning, L.J., had the following to say pertinent to that question (see
p. 632 thereof):
"Whilst causation is the decisive
factor in determining whether there should be a reduced amount payable to the
plaintiff, nevertheless the amount of the reduction does not depend solely on
the degree of causation. The amount of the reduction is such an amount as may
be found by the court to be 'just and equitable', having regard to the
claimant's share in the responsibility for the damage. This involves a consideration, not only of the causative
potency of a particular factor but also of its blame-worthiness."
This dictum is apt for the purpose of
the present case and I adopt it.
Coming to the case
before us, the learned trial judge was at pains to determine what was the major
cause of the accident. Having reviewed the evidence and having made the finding
that the accident occurred after sunset but at dusk, he proceeded to state,
inter alia:
"To drive cattle on a road after
sunset without lights is not only dangerous, stupid and negligent, it is a
criminal offence.
There is no doubt that the major cause
of this accident was this factor."
There was no fault
that the learned judge found against the defendant other than the failure by
his drovers to carry lights to warn approaching traffic of the presence of the
cattle on the highway. (It is incidentally provided by s. 234 sub-s. (4) of the
Roads and Road Traffic Act, Cap. 766, that a herd of ten or more cattle (or
other animals as defined in that section) shall not be driven upon a road
between sunset and sunrise unless a person carrying a white light precedes and
another carrying a similar light follows such animals or cattle). Moreover the
learned judge also found not only that the drover, Mvula, was flagging down traffic,
but also that one car in fact stopped when so waved down. In my opinion this
not only indicates that the plaintiff's driver could, if he had been alert,
have stopped too, but additionally that the drovers did take a measure to
mitigate their negligence of failing to carry lights.
Having determined
that the major cause of the accident was the failure on the part of the
defendant's drovers as already noted, the judge stated:
p189
"But it seems to me that the
pIaintiff's driver in fact could have and I strongly feel did see the cattle
and warning flag waved by Mvula.
Whether he decided he would try to get
past, or whether he was travelling too fast down the hill to be able to stop in
time I know not: but that he is partially to blame for what happened I am also
quite satisfied."
Earlier on in the
judgment he made a firm finding that the driver of the plaintiff''s motor
vehicle was ". . . travelling at well over 40 kilometres per hour
generally and particularly too fast for the part of the road Where he was . .
." This finding was made in the light of evidence given by the plaintiff
's driver that when laden the Kenworth truck should be driven up to a speed of
25 miles per hour (or 40 kilometres per hour) and in this case the truck and
trailer were fully loaded with acid. There was also evidence that the lights of
the truck did not shine far enough when it was being driven on the material
occasion. I consider it to be reckless for the driver to have driven at a speed
well over 40 kilometres per hour Then his lights were defective. That in my
judgment was yet another fault on his part.
The learned judge
was of the view that the factor constituted by the major cause of the accident
represented greater blame-worthiness. I think he was wrong. I consider that the
plaintiff's driver's faults, namely driving too fast, driving a motor vehicle
which had defective head lights and failing to take evasive action not only
after seeing the cattle, but also after seeing the red warning flag being waved
by Mvula, carried more blame-worthiness. I would consequently determine that
each party's claim is partially successful meaning that each party was to blame for the accident and
consequential loss. Having regard to the plaintiff's share in the
responsibility for that loss, I consider that a just and equitable
apportionment should be that the plaintiff was two-thirds (or 66.66 per 30
cent) and the defendant one-third (or 33.33 per cent) blame-worth .
Since the learned judge at the trial awarded to the plaintiff K8,000 as general
damages, the defendant bears liability to pay to the plaintiff 33.33 per cent
of that sum which mean she should pay K2,666.40, and as the judge found that
the defendant suffered a total of K2,348 in general and special damages the
plaintiff is liable to pay 66.66 per cent or K1,565.17 of that loss. Since the
defendant has more to pay than the plaintiff's liability, what is due to him
from the plaintiff will be offset from the defendant's liability which means
that his net liability is to pay K1,101.23 to the plaintiff. I would therefore
allow this appeal subject to the granting of reduced damages to the plaintiff
in the sum of K1,101.23 and order that the order for costs made in the High
Court should stand with costs of this appeal to the appellant.
Judgment
GARDNER, J.S.: I concur.
Judgment
BRUCE-LYLE, J.S.: I also concur.
Appeal allowed