[2017] KEHC 2338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL CASE NO. 28 OF 2016

BERNARD MUTISYA WAMBUA………………………………….…….PLAINTIFF

-VERSUS-

SWALEH HASHIL………………………………………………………DEFENDANT

J U D G M E N T

1. This claim was brought by the Plaintiff initially against two Defendants, to recover special and general damages in respect of injuries he says he sustained following a road traffic accident on 1st June, 2013 along Gilgil - Nakuru Road. The accident involving the bus registration number KBB 129S which the Plaintiff was driving, and the 1st Defendant’s lorry-trailer KAZ 314J – ZC3900. The claim is founded on the tort of negligence. By his plaint, the Plaintiff alleged and particularized acts of negligence against the driver of the 1st Defendant’s vehicle.

2. On his part the 1st Defendant filed a defence denying negligence and almost every key averment in the plaint. In the alternative, the 1st Defendant averred that if the accident occurred, it was substantially or wholly caused by the Plaintiff’s negligence. Particulars of the said negligence are set out in the defence.

3. The suit against the 2nd Defendant, described in the plaint as the owner/driver of the trailer ZC-3900, was withdrawn by a notice filed on 1st February, 2017 leaving only the 1st Defendant (the Defendant). During the hearing of the matter on 19th June, 2017 only the Plaintiff adduced evidence calling three witnesses.

4. The sum total of the Plaintiff’s case is as follows. The Plaintiff was in the material period employed as a driver with Kenya Wildlife Services (KWS). On the material date, at about 6. 30pm he was driving a KWS vehicle registration number KBB 129S along Nakuru-Gilgil Road from Nakuru headed to Naivasha. There was traffic on both sides of the road and at place called Kikopey, the Defendant’s vehicle KAZ 314J with trailer ZC 3900 was among vehicles approaching from Naivasha direction. The said lorry - trailer lost control. The trailer then zigzagged on the road smashing into other vehicles on the road ahead of the Plaintiff’s vehicle and eventually ramming into the Plaintiff’s vehicle.

5. The Plaintiff sustained severe skeletal and soft tissue injuries for which he was hosptalised over several months for treatment. He has since been unable to return to gainful employment as he lost the use of his right hand due to paralysis. As well his lower limb bones, particularly on the right have become infected. He requires constant assistance by a helper. Doctors assessed that he has sustained an 80% permanent incapacity.

6. As stated earlier, the Defendant did not call any evidence. Even so, the Defendant, relying on the decision of the Court of Appeal in Michael Hurbet Kloss & Another -Vs- David Seroney & 5 Others [2009] eKLR, has in submissions urged the court to find the Plaintiff 50% liable for not taking any action to avoid the collision.

7. This proposal is opposed by the Plaintiff who submits that the Defendant not having called evidence to controvert the Plaintiff’s evidence cannot seek refuge in pleadings and submissions as a substitute. Several authorities are cited in that regard, including the decision of the Court of Appeal in Daniel Toroitich Arap Moi -Vs- Mwangi Stephen Muriithi, as quoted by Aburili J in Mercy Njoki Kamau -Vs- Tiny M. Royal Co. & Another [2016] eKLR.

8. Specifically regarding the alleged attempt by the Defendant, while not calling evidence on the issue, to allude negligence on the part of the Plaintiff, the Plaintiff relied on the decision of the Court of Appeal in Embu Public Road Services Limited -Vs- Riimi [1968] EA 22.

9. In the case of Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that:-

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

10. This court has considered the parties’ pleadings evidence on record and the submissions. The evidence of the Plaintiff as to the manner in which the accident occurred was that the Defendant’s vehicle having lost control hurtled down at a speed, while zigzagging across the road, and hitting at least four vehicles ahead of the Plaintiff’s in its wake, before it finally smashed into the Plaintiff’s vehicle. The Plaintiff said he saw the motor vehicle approach from a distance of 50 metres with lights on and neither himself nor other motorists had room for escape as either side of the road was occupied by parked trucks.

11. Unlike the two drivers involved in the Michael Hubert case, the Plaintiff herein and other affected motorists had no room for maneuver to avoid a collision with the fast moving and out of control, Defendant’s vehicle. By his pleadings and uncontroverted evidence, the Plaintiff has described the occurrence in a manner supporting the inference of negligence on the part of the Defendant’s driver and therefore the Defendant. The Defendant’s driver lost control of his vehicle and proceeded to hit oncoming traffic. There is no explanation offered as to why this occurred, for instance that brakes failed as was suggested by the police officer PC Gitari (PW1). If indeed any mechanical failure caused the vehicle to lose control, there is no evidence to show the actions taken by the lorry driver to avoid the collision.

12. As stated in Embu Public Road Services Limited -Vs- Riimi [1968] EA 22:

“Where the circumstances of the accident give rise to the inference of negligence then the defendant in order to escape liability has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for the accident was consistent only with an absence of negligence….”

See also Kenya Kazi Limited –Vs- Nandwa [1988] eKLR.

13. I do find, on the available evidence that the Defendant is 100% liable for the accident.

14. Regarding quantum, the extent of injuries sustained by the Plaintiff and related sequela are not in dispute. The Plaintiff sustained fractures to the right hand side collar bone, right hand metacarpals, complete paralysis of right limb, dislocation of the right shoulder, and compound fractures to the right tibia and fibula. The left femur was also fractured. Due to nerve injury on right hand, the hand cannot be used.The compound fractures in the right leg developed infection and was oozing pus two years since the accident. Despite many surgical interventions including K-nails implants his injured right hand and limbs have not been rehabilitated.

15. As a result of these injuries, the Plaintiff has been rendered incapable of working, doing any personal tasks or chores and must rely on others to get by. Both Dr. Wokabi and Dr. Ruga agree that he has suffered 80% permanent incapacity. Thus in respect of general damages, the Plaintiff urges an award of Shs 7 million, relying on Brian Kieya Mokua –Vs- Christopher Komen [2015] eKLR in which the Plaintiff had allegedly sustained comparable injuries.

16. It is a legal truism that no amount of damages can restore fully the otherwise shattered physique of the Plaintiff or related lost amenities, and that what a court of law is obligated to do is assess reasonable damages that are proportionate to injuries suffered.

17. In my own view, the most serious consequence of the Plaintiff’s injury is the paralysis to the right hand, even though other proven skeletal injuries have adverse sequela. None of the Plaintiffs in the two decisions cited by the Defendant, namely Easy Coach Limited -Vs- Emily Atieno Onyango [2015] eKLR and Simon Mburu Wanjiku -Vs- Charles Wambugu Wamiti [2009] eKLR to my mind compare well with the instant case. Because, none suffered paralysis of the right hand, notwithstanding the severity of their injuries. Total incapacity in the two cases was 40% and 50% respectively.

18. All in all, looking at the prognosis of the Plaintiff in the instant case as contained in the two medical reports, and my own observation of him when he testified, it is my view that the sum of Shs 1 million proposed by the Defendant as general damages for pain and suffering is inordinately low. That said, the Plaintiff in Brian Kieya Mokua suffered 100% permanent incapacity including incontinence. Thus, doing the best in the instant case, I would award a sum of Shs 6,500,000/= to the Plaintiff herein as general damages for pain and suffering.

19. In my own view, this award takes cognition of the Plaintiff’s lost amenities including the loss of ability to walk properly, perform his own personal chores and his general independence as well as other related deprivations resulting from the injuries. I will therefore not award further damages for loss of amenities.

20. Concerning diminished earning capacity, it is undisputed that the Plaintiff though still in the employ of KWS has since the accident remained away from work and will be unable to work again. He testified that theKWS has retained him pending the outcome of this case. It is unlikely thatKWS would continue to retain an employee who is unable to work in the remaining years of his life: he will most likely be retired. The Plaintiff is 54 years of age and the chances of securing other employment ifKWS retires him on medical grounds, appear slim.

21. Such a situation to my mind is what is addressed by the passage quoted by the Defendant in the case of Thomas Mwangi Gichuhi & Another -Vs- Peter Ngugi Kamau [2012] eKLR where the case of Moelikar -Vs- Reyrolle & Company Limited [1977] 1 WLR 132 was cited:-

“This head of damages generally only arises where a plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at sometime in future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial.”

22. In the instant case, the Plaintiff could be retired at the age of 55 years or at least before the sixty years’ retirement age. Any award under this head is consistent with the Plaintiff’s physical reality, and not speculative, merely because no letter byKWS on the matter was tendered. I am prepared to accept on the evidence before me that the Plaintiff could well lose 6 years of his working years due to the state of his health. And secondly, that he will be unable to secure another job as a driver or at all, in light of his condition.

23. I note however that the Plaintiff has not tendered a payslip more recent than August 2014 (Exhibit 5). The basic pay therein is Shs 27,500/=. Emoluments such as house supplementation or risk allowance are attached to active employment and cannot in my view be included, for purposes of assessing diminished earning capacity. Thus I will assess damages for future/diminished earning capacity as follows:-

Shs 27,500 x 12 months x 6 years = Shs 1,980,000/=

24. Future medical expenses pleaded and proved included Shs 150,000/= for the intended surgery to remove the K-nails in the fracture sites. No evidence was tendered to justify the award of Shs 100,000/= for a special toilet, although evidently his injuries render it difficult for the Plaintiff to squat. I will allow the sum of Shs 150,000/= for surgery to remove K-nails and Shs 50,000/= for the purchase or fabrication of a special toilet with a seat. Therefore a sum of Shs 200,000/= is awarded under the future medical expenses head.

25. Under the special damages head, the Plaintiff tendered receipts for the sum of Shs 184,000/= in respect of travels to attend clinic appointments and other documentary evidence in proof of items 8a, 8b, 8d in his plaint. The claim in respect of a wheel chair purchase was abandoned. And though no evidence was tendered to prove that the Plaintiff has paid for nursing care/help since the accident, it is undisputed that in his earlier condition as now, the Plaintiff has since the accident required nursing assistance just to get by. Using the sum of Shs 300/= which is the minimum daily wage payable to casual workers in urban areas, I would calculate the sums expended on nursing assistance as follows:

Kshs 300 x 10 x 12 months x 4 years = 144,000/=

26. Special damages awarded to the Plaintiff are therefore as follows:

a) Medical legal report - Shs 2,000/=

b) P3 form - Shs 1,000/=

c) Travelling expenses on - Shs 184,000/=

clinic visits

d) Copy of records - Shs 1,000/=

e) Nursing assistant - Shs 144,000/=

Total - Shs 332,000/=

27. In the result, judgment is entered for the Plaintiff against the Defendant in the sums hereunder:-

a) General damages for pain, - Shs 6,500,000/=

suffering and loss of amenities

b) General damages for diminished - Shs 1,980,000/=

earning capacity

c) Future medical expenses - Shs 200,000/=

d) Special damages - Shs 332,000/=

Total - Shs 9,012,000/=

28. The Plaintiff will also get the costs of the suit and interests.

Delivered and signed at Naivasha on this 3rdday ofNovember, 2017.

In the presence of:-

Miss Kithinji holding brief for Miss Amboko for the Plaintiff

Mr. Thuku holding brief for Mr. Kinjanjui for the Defendants

Court Clerk - Barasa

C. MEOLI

JUDGE