[1995] KEHC 11 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 651 of 1993

HAMISI GUNGA BAYA..................................................................................... PLAINTIFF

=VERSUS=

SALT MANUFACTURERS LTD.

ISMAEL SUMRA & GAFOOR T/A SUMRA TRANSPORTERS..........DEFENDANTS

JUDGMENT

This action arises out of a road traffic accident whichoccurred on the 13th June 1993 in the early hours of themorning. It is not in dispute that the 1st defendant's vehicle- Peugeot Saloon car driven by its servant rammed into thestationary lorry of the 2nd defendant. The plaintiff who was apassenger in the Saloon car received injuries as a result ofthe collision and seeks to recover general and special damagesfrom the defendants.

Each defendant denies liability and seeks to blame theother for the negligence which culminated in the accident. Itis therefore necessary to highlight and adjudicate the facts.

According to both D.W.2 and D.W.3 the lorry developedmechanical defect which rendered it immobile at 11 p.m. whilethey were enroute to Malindi. D.W.2 is the turnboy. He says2that after they realised that their vehicle could not go further the turnboy fixed a triangle reflector at the rear-of the road. He also fixed twigs on the road. The lorry itself has rear reflectors (as can be seen from the photographs taken and produced in these proceedings).

All these efforts were intended to warn other drivers of the obstructing presence of the lorry on a portion of the lane on which the vehicle heading to Malindi would travel. According to D.W.2 & D.W.3 nothing eventful happened from 11 p.m. when the lorry had become defective and was parked on that part of the road to about 3 a.m. when the 1st defendant's saloon car rammed into the lorry.

Fredrick Kunyungu Mbonzi (D.W.I) was the driver of the saloon car in which (it must be remembered) the plaintiff was travelling. He testified that whilst he was driving at a speed of between 70 kph and 80 kph an on-coming vehicle suddenly emerged from the opposite direction at the time when he was already too close to the lorry; and that despite having applied the emergency brakes, which are evidenced by the presence of skid or tyre marks behind the lorry (see the photographs produced in the proceedings), he rammed into the lorry. He denies that he saw the triangular reflector or twigs which are alleged to have been fixed behind the lorry by D.W.2 and D.W.3. By this denial D.W.I sought to create an impression . that D.W.2 and D.W.3 are not honest and reliable when they allege that they marked the road immediately behind the vehicle in such a manner that, other road users would have noticed the stationary lorry in their way and avoided colliding with it.

He thus seeks to blame them for the accident. But a clear scrutiny twigs of the photographs which were produced in the proceedings - and particularly photograph B and G reveals that some twigs were run over by the Saloon car before it rammed into the lorry; other twigs are even underneath the saloon after the accident. By his evidence D.W.I suggests that the twigs had been fixed after the accident. But evidence manifested by the photographs is that some of the twigs were there prior to the accident. With regard to the evidently fresher twigs D.W.2 said that these were fixed after the accident, when the earlier markings had virtually been destroyed by the saloon. That is why the triangular reflector is standing erect - and appears to have remained intact after the accident. D.W.2 says that he had to repair and straighten it after the accident. He says that he had to do so in order to warn other motorists - and to avoid another accident.

In my opinion the evidence of D.W.2 and D.W.3 is cogent and relevant. These witnesses impressed me as more credible and honest. Consequently, I reject the evidence of D.W.I where it is at variance with those of the other witnesses. I, therefore, find as a fact that the triangular reflector and twigs had been fixed by D.W.I as soon as the lorry ceased to move on, and that these marks were there for 3 to 4 hours prior to the accident caused by D.W.I.

The questions which now arise are as follows:

(1) What factor prevented D.W.I from noticing the twigs, the triangularreflector and even the reflectorson the back of the lorry?

(2) Can negligence be ascribed to D.W.I which would be deduced from his failure tonotice the features in question (1)?

D.W.I's own evidence must be put in clear perspective. He wasdriving at the wee hours of the morning. He refused to becandid to the court as to the business he had been transactingfor the greater part of the night. All he said was this:

"I had been with Fisheries Officers. I had had somecommitments in a relative's home."

Had been drinking alcohol - and was he mentally affected byalcohol so as to be rendered incapable of giving due attentionand care to the operation of the vehicle at the material time?All the matters must be considered in relation to the fact thatvisibility was poor and the road surface was wet and slipperydue to rain. A driver had to be quite careful. Even if D.W.Ihe had not been drunk, fatigue arising from lack of rest and sleep can not be ruled out. Added to these aspects is the factthat he admits that he was driving the vehicle at a speed of 70to 80 kph which in all the prevailing circumstances of the casemust be considered to be excessive speed.

After considering the totallity of the circumstances ofthis case I can not say that this was an inevitable accident in the sense that it could not be prevented. Since visibility waspoor the speed of 70 k.p.h. was excessive; he must not have hada proper look-out for obstacles as required of a prudent driver; otherwise he should not have failed to notice the lorry-given that it was on a very straight stretch of the road heshould have not driven the vehicle unless he felt physicallyand mentally fit to do so.

For these reasons that I find that the D.W.I was reprehensiblynegligent: he did not exercise all the reasonable care requiredof a prudent driver. Consequently, I find the 1st Defendantliable. There is no evidence upon which I can find the 2nddefendant, i.e. the owner of the lorry liable in negligence. Inmy opinion the acts of driver and the turn-boy namely, ofremoving the-lorry as much as possible away from the tarmacroad and thereby were able to leave ample road space forvehicles going towards Malindi to pass and that of placing areflector and twigs on the road, constituted sufficientcompliance with conduct and standard of care required of themin the circumstances in which they, found themselves.

I now move on to deal with the issue of quantum of damagesto which the plaintiff is entitled. To do so, I must considerthe nature of injuries suffered, the amount and length of painand suffering endured, the level of healing achieved and theresidual disabilities suffered and any loss of amenitiessuffered. It is a truism to say that in case of loss ofexpectation of life and pain and suffering no true compensationcan be given by any amount of money, no matter how an elaboratearithmetical computation is employed. But the courts areobliged to do the best they can. In a case such as theinstant one the plaintiff is obviously entitled to fair andreasonable compensation assessed in the light of previousawards in respect of comperable damage.

6The starting point is the medical report dated 25th August 1993 by the consultant surgeon Mr. Hemant Patel F.R.C.S. It lists the injuries suffered as follows:

1. Laceration of left maxillary area;

2. Laceration of forehead;

3. Fracture of mandible;

4. Injury of lower front teeth;

5. Fracture of surgical neck of humerus;

6. Chest, injury;

7. Laceration of the chin.

According to the medical report the plaintiff was admitted at Galana Hospital for three days. He resumed work on 31st August 1993.

Mr. Patel then wrote the following opinion:

"Mr. Hamisi sustained above named multiple injuriesat the road accident on the 13th June 1993. He washospitalised for three days and remains off worktill 31st August 1993.

He has visible scars on the face. His symptoms ofpain and stiffness of the right shoulder, difficult of eating hard food are due to after effects of injury but are of temporary nature. He should fully recover without ay permanent incapacity. The flow of tears ,is due to damage of locrimal duct at the laceration point on the cheek. He needs to see the doctor and sort this complication out."

It is instructive to note that in his evidence the plaintiffdid not highlight any residual disability. I am thus entitledto the view that complete healing was achieved within lessthan 3 months.

I peg my award on the case of LESIKAR OLE MURINDO -V- RAYBINDER SINGH H.C.C.C. No. 1772 of 1985. In that case the factsare that the plaintiff suffered a major head injury, fractureof the mandible multiple injury to the left forearm andfracture of the right ankle joint. He was unconscious for threeand half weeks; the mandible was fixed with interdental wiringfor 5 and a half months. The forearm was extensively swollenwhile the fractures of the ankle were manipulated and plasterapplied for two months. Due to prolonged period ofunconscious the head injury would pre dispose him indeveloping epilepsy late in life. There was need for furtherHospitalisation and proper management of the fractures butmalunited mandible. The ankle had healed well but with somemoderate stiffness. General damages for pain, suffering andloss of amenities were assessed at Kshs. 250,000/= in ajudgment delivered on 3rd October 1989.

The case had more much gruesome aspects than the presentone where full hearing was achieved within a relatively shorter period. The factor, of inflation has to be taken into account;

But nevertheless I consider that fair and reasonable compensation will be achieved with an award of Shs. 240,000/= on the head of pain, suffering and loss of amenities.

Special damages are awarded at Kshs. 7,390/=.

Accordingly judgment is entered for the plaintiff for those figures plus interest and costs against the 1st defendant. The suit against the 2nd defendant is dismissed with costs to be paid by the 1st Defendant.

Dated and Delivered on the 14th March 1995.

I.CC. WAMBILYANGAH

JUDGE