Sagawa v City of Blantyre (Civil Cause 147 of 1985) [1987] MWHC 6 (14 September 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY oe CIVIL CAUSE NO.147 OF 198s BETWEEN: 3 = B. D. SAGAWA.........ccc0cceenees vetecensccneczeveceecces PLATNGEEE” ~ and — CIty OF BLANTYRE. ooo... OR god seoyiere ee oe *stecches ncn y + sz DERENDANT Corams MYEGHA, J. Saidi of counsel for the plaintiff- Msisha of counsel for the defendant. . Namvenya, Official Interpreter =~ Longwe, Court Reporter Se ‘The plaintiff, in this case Brighton Sagawa in negligence against the defendants; in respect of injuries he sustained ina during the night of 21st °and 22nd July, | 198 Road in the City of Blantyre by reason of the Statement of Claim alleges that the defendants, who are Statutory Body, as Highway Authority of the Blantyre/Chikwawa ROA porate os in the course of carrying out maintenance work on the said road, deposited — or heaped lcose stones in the road and caused it to ‘be dangerous to in exe core roac| users. As a result, the plaintiff, who was. lawfully diving his cheer motor vehicle on the road, skidded and swerved on the loose ‘Stones’ and: — y are injuries. ‘The particulars of the injuries are alleged tobe. abrasions. aim and iruises on the body; fracture of the right femur, pain and. suffering wher undergoing operation; and shocks. Siento omer inavienenoine The particulars of negligence were also set out alleged that the defendants were negligent in permitting the road be slippery, failing to ‘take adequate: precautions byway of Lightin or erecting warning signs, leaving : the ‘said: loose stones on the: roa Banal and generally failing to exercise any.or reasonable care towards motorists: when they knew or ought to have known that the loose ‘stones constitut aoe a danger to road users, — \onnl as cere Macnee gain er : Particulars of svecial damages with these at a later stage if the n The defendants deny liability their defence, that if there were all reasonable care. which: was re _ dangerous to traffic and they had at both ends of the section of the x Further, they allege contributory negligence on the part of the plaintiff ~° in failing to properly observe and take heed of the said Warning sions; | and that he was driving at a speed which was dangerous in the poco circumstances. oe oe Se These then, in brief, are the parties’ pleadings. I will now examine the evidence adduced hefore me. : The plaintiff, in his evidence in chief stated that he was employed by Mount. Soche Hotel as a Chef. During the night of 2lst and 22nd July, -— 1984 he knocked off from his work and decided to go home: He elite dd cuenta ear, which he had recently bought but not fully paid for? and,“ with 2 a friend drove home. He took Chikwawa roads “As he was driving on thig 00 > roacl, before Moneymen Club, he noticed that the. car.waa. skidding. ands... swerving. He applied brakes, but to his horror, the’ car swerved and hit a concrete fence at. Moneymen Club. He was” severely injured, sustaining —~ a broken femur, bruises on the body and severe pain. His friend had ~ sero minor injuries. His car was so extensively damaged that it could not’ “90 and has not been repaired. As he was being taken to the hospital he noticed that there were some loose stones on the roadand no WET Oi Jecsemates a signs had been erected, especially from the Blantyre side. “He was in’ hospital for 2; months. During this period he received half salary and no bonus; his promotion was shelved. He experienced severe °PALN during and after operation since a pin had been: inserted: in-his~lege<» to tighten the bones. At the moment, the pin has been removed, but he cannot climb stairs easily in the kitchen as his joo entails; he’ =" has lost 1 centimetre on the foot and he cannot dance and jogas he used to do. He is no longer active on his job at peak hours. His medical | expenses were paid by MSMA. His car- which he bought “at. K3,500°00," but’ he values sit at K5,000,;"has” been” lost." It was his” avidence "CHAE he skidded because the defendants left leose stones. on the ‘road and..that. there were no. warning SIGHS 2 cies: ocean ommmyenmmes en toca ope In cross examination he stated that he was aware of the loose ~~ Stones aS he was being carried to the hospital, despite the fact that ~ he was in pain. He could not distinguish between the loose stones and i the tarmac because both were dark, and since initially, before he ‘entered =~ the area there were no loose stones; he started skidding-inmmediately- - he hit the loose stones. He denied that he was driving fast, that-he saw warning signs, : . Peder > inlaid hose en tna ego The second witness for the plaintiff ‘was Mr. Phoya, who works "" for Oilcom. He told the court that “in July he owned ’a’motor car which. “ is now written off because he had an accident with it “néar ‘or AE MONEY MEN es cia Club. He told the court that on 20th July 1984 he was going TOD LGC eens came emu up his wife driving his car at 3.30 p.m. When he reached Moneymen Club —- he hit loose stones which were spread on this road, and his car swerved from side to side and he overturned, damaging his “Car: beyond repa dr gee: scestom tose He did not see any warning signs to indicate that there were loose PaLQueS: eS on the read or warning drivers to drive carefully. In cross: examination’: this witness emphatically said that there were no warning signs,” was no flagman on either end of the road to ‘warn re A went on to say that he could not. distinguish the loos tar because the road looked as” d bee red, Queen Elizabeth Central” Hospital the plaintiff when the plaintiff and a broken femur. He made a repo: The report stated: eee ic a de sig tgs "This is to confirm that the Bos named: patient: was, Pea admitted on 22-7-84 after being involved in an acci- sei dent. On admission he had several- bruises and a fracm ture of the right femur. Initially this fracture was healed conservatively. with skin traction but since on a check X-ray the. position was not Satisfactory, an open reduction and ... fixation with a K-nail was, performed on 22~9-84.. He has recovered well and was discharged on 10-9-84. Since then he has been seen by me as an out-patient. He walking well now. There is a difference in leg” © length of about 1 cm which easily can be compensated by a slight raise of the right shoe." In cross examination the witness pointed out: that it. is- difficult nm to say the effect of the injury, but it might cause the hip joint: tone wear; and, if he walks without shoes che wil inp: buts “he said,~in wor four or ten years there will be. ‘problems Se cu um ‘ : that at the time of accident the’ ‘plaintif€ : have had: severe. pain but he could not state whether he could observe wha “gt not, depending on other injuries. “He was, however, sure’ that “wit broken femur one can observe. = oe ewes nero co ee The defence called two. eee es. The ence one ‘WAS Lancer Hanki, Hanenanee who was an employee of the defendants. He told the court that he’ was eae employed as Senior Works Supervisor in the Road Department; and: his~ duties are to prepare, in the form of materials, and instruct supervisors | what to do, He told the court that in July 1984, him and his group. were applying tar on the Chikwawa/Blantyre Road. He was there for: the sofas whole day with supervisors, capitaos and labourers. Before they. started - a see applying the tar, so he told the court, warning signs. were put up. to: ct = warn motorists. The first sign was "Men Working Ahead. Drive Carefully" After 150. ‘yards another warning sign was erected which ‘stated. "Resealing Ahead" and, thirdly, “Loose Stones Ahead , Drive Carefully". After:th signs were erected the area where the men were’ g was“closed by’ drums painted black and white and at the end of each side a flagman was put on with two flags, red’ and: green, Signalling traffic. ‘to-pass: or not. After these were effected,. ‘they commenced. ‘che..jol NTE his evidence that they worked up to 2 p.m. without break. - the tar, stone chips and a roller went over the r had finished work. At 4 p.m., after the rol “was Cur over aga they stopped leaving signs "Loose Stones, Dive Carelly, ‘and these signs were erected at both directions. | Tt was his” evidence that ‘he’ was” ‘there. for the whole day and he did: not see any accident. went there again to check if the signs were there. an a done on a Friday. On Monday he went to the place: and: found. nothing unusual, and the signs were removed on Monday 10 d ot this accident in the. yee, oO a ooy The next witriess” Von the: ‘détence was ‘Leston: Jack, who was: ‘employed as a Capitao at the site. He told the court that ain July. 1984 they. oie were applying. tar along: Chikwawa/Blantyre “road: houses to»near Moneymen Club. “He told the court” applying tar. After applying. ‘the tar loose. stones’ are ‘spréad., ‘OV then a roller goes over. After this the loos: Stones: are swe the road. In order to warn traffic eee si E -- tome. Tam aware that in’a civil case T have. to decide the issues ~~ ee examination this witness said that it was the duty of Hanki to check the signs and that what he said in examination in chief was’ the general a mode of working and not specifically that used’ on the Chikwawa Road. ee nie This, then, is the evidence for both parties before me. I mist now draw some conclusions from-it. ~'The court. also had the opportunity to visit the scene. ‘the visit to the scene too was of. some-assistance <~ on a preponderance of probability. From the evidence before me, there - is no doubt that the plaintiff was seriously injured: because of the. _ accident. His car was a write-off. According to. the evidence “of the™.... “doctor, whose evidence has not “been contradicted; the plaintite Tust have felt a lot of pain from the injuries, and ‘that. although the broken -~ femur has healed, he will have same problems in future because of the Ll cm short on his leg. From this evidence it’ can easily be deduced that the plaintiff suffered damage. — sce ' a From the evidence, it is not very much disputed ‘that the OAC ss at this particular spot had loose: stones on the surface: It is. common fenegenerm rae sense to imow that loose stones on the surface of the. road. are dangerous. Again, on the evidence, it is quite clear that the people who spread the loose stones on the road were the defendants! servants. ~~ they were doing so in the course of their job.» The defendants were; therefore, vicariously liable for their actions and omissions.~ The question I have to ask myself is: did the defendants..owe a... duty of care towards the plaintiff so as to be liable in the AOLE-Of aH negligence? The general principle is that "You must ‘take. reasonable « care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour..:.. -_ persons who are so closely anc. directly affected by my act that 1 ought. easonably to have them =: in contemplation as being so affected when I am directing my mind to the acts or amissions which are called in question." - “Per Lord Atki in Donoghue v. Stevenson (1932) AC, 503 at p.509.- hae sv Tt would appear therefore: that the defendants in the present case: _ oved a duty to the plaintiff as a‘motorist: bec use « Close] directly affected by the acts of the defendants in repairing the road: Moreover, the plaintiff was such that the defendants should have had- him, and other motorists, in ‘their contemplation. - The next question I have to consider is whether they took all - reasonable care to prevent the accident. In this respect I-agree with the observations made by both counsel that this depends upon the facts which the court will find from the witnesses. _ es neepee seve hein Het ft was the evidence of the plaintiff that there were no warning signs to indicate that the road had loose stones on the surface of the ==" road. It was his contention that hac the warning signs been erected; the accident would probably not have happened as he would have seen. On the other hand, Hanki and Dt With respect, I do not think that Di oT ae Sen to the defendants. His evidence was of a general character. In fact, he told the court the procedure which they ‘adopt when repairing the. roads in general. f ignore his evidence in its entirety because it did not relate to the situation that prevailed on that fateful day. ft an therefore left with the evidence of PW1, PV2 and Dil. On the whole — I hold that when the accident hapoened there were no warning signs on the road to warn motorists, Now, the question that I have to decide is. whether failure to eres erect warning signs constituted negligence on the part of the defendant. ome f think this amnission was negligence, ea eee ft would appear before me that if there were loose’ stones on the «- surface of the road and no warning signs were erected or. the are lighted, an action for damages for injuries sustained would be Maintained si e voes As was pointed out by Bruce, J. in Penny v. ¥timbledon Urban Comail (1898) 2 op 212, — eR CENIAR eae re “the principle of the decision, ck think, is. this, that. = when a person employs a contractor to do work IIA vt ces coe place where the public are in the habit of passing, which wor - which worl: will, unless precautions are taken, cause 7 *\ danger to the public, an bligation is throw upon these. \the person who orders the worl. ta be done to-see that oem the necessary precautions are taken, and that if theese / necessary brecautions are not taxen, he cannot escape ¢ liability. See oe : See eee ss ES Hal cca licehns aii AGEL In that case a contractor, when repairing a road; left heaps ‘of soil sn inne On the road; and the plaintifé who was walling on the road in the dark, oe fell over and injured himself. There were no warning SIGNS Co 5 Cipro se aaten respons It was held that the defendants were liable because they-did not take any precautions. On this principle I would hdld the defendants liable — in negligence. However, the defendants have raised “the -question“of 9 1 contributory negligence that the plaintiff himself was at fault in that he did not take heed of the warning signs and that he Cove at an-excessive- speed having regard to the circumstances of the case, — Ihave already - held that it is doubtful if ‘the warning signs were erected, ~buty-age-<" regards excessive speed, I am afraid that there -is no evidence to show. that the plaintiff was speeding. I would not hold, therefore, that” the plaintiff was speeding. Contributory negligence therefore fails: t therefore find the defendants liable. aor ntorcemernae oer steneremeanes I will now consider the question of damages. In ‘respect of special damages, there is only evidence of loss of the car which" he bought at — 53,500. The 5,000 claimed is without evidence. TI accept the figure — of K3,500. There is also no evidence to show that he lost half monthly earnings totalling K425.00 for two months as well as bonus at K150.00°°—" ber month for to months, These have not been proved to me. Toreject.” twill now turn to the question: of. evidence revea that the plaintiff has ) pex one leg is:short byl onai-te mak oblems ‘ut on this evidence, arard general damages "OF “KG 000s" ATT judgment for the plaintif in the. Repo | Paagha azn t 4 hasnt singed sede ee