Salum Ally Said v Alex Patrick Maghembe

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CIVIL APPEAL NO. 15280 OF 2024 (Arising from the Resident Magistrate’s Court of Manyara in Civil Case No. 02 of 2023) SALUM ALLY SAID…………………………….…....…….………………….. APPELLANT Versus 1. ALEX PATRICK alias MAGHEMBE………………….……………. 2. MTEI EXPRESS COACH LTD…………………………………….. RESPONDENTS 3. INSURANCE GROUP OF TANZANIA…………………………… JUDGMENT 4th November and 5th December 2024 MIRINDO J.: Salum Ally Said, was on 6 January 2022 at around 9 pm, walking back home from shop along Dodoma-Babati Road at Himiti area. He was knocked down by a passenger bus which was soon identified as belonging to Mtei Express Coach Ltd with registration number T 299 AXP. Salum d was rushed to Mrara Hospital (Babati Town Council Hospital), moved to Manyara Regional Hospital and eventually to Kilimanjaro Christian Medical Centre where he had his left arm amputated. He was discharged on April 2022. He brought a negligence action in Manyara Resident Magistrate’s Court against the bus driver, Alex Patrick alias Maghembe, its owner, Mtei Coach Express Ltd, and the latter added its insurer as a third party. The trial court found that Salum suffered serious injuries from the accident caused by the passenger bus with registration number T 299 1 AXP but was uncertain about the role of Salum in the accident. Given that the negligence action was not preceded by a traffic case, the trial court held that the negligence action was not proved to the required standard and dismissed the case. The appellant, Salum Ally Said, was dissatisfied with that decision and appealed to the High Court at Babati. He was represented by Mr. Zuberi M. Ngawa, learned advocate who happened to represent him at the trial court. The second respondent and third respondent were represented by Mr. Mbugha, learned advocate. Third respondent defaulted appearance in the trial court. The first respondent defaulted appearance before this Court and in the trial court, and after the substituted service in this Court, the appeal was heard ex parte against him. This appeal, resting on three grounds of appeal, raises the significance of a traffic case in a negligence action for motor car accident. The common law-rule as restated in Hollington v F Hewthorn and Co Ltd [1943] 2 ALL ER 35 is that a finding of a criminal court is irrelevant and inadmissible in a subsequent civil action. This rule was abolished in various common law-jurisdictions and in Tanzania, it was abolished by the Evidence (Amendment) Act 19 of 1980 with the introduction of section 43A. Section 43A states that: A final judgement of a court in any criminal proceedings shall, after the expiry of the time limit for an appeal against that judgement or after the date of the decision of an appeal in those proceedings, whichever is the later, be taken as conclusive evidence that the person convicted or acquitted was guilty or innocent of the offence to which the judgement relates. 2 Its most frequent application is when after a conviction for a traffic offence the evidence is sued for negligence. The fact of conviction is normally pleaded and the fact that the defendant was negligent is deemed to have been proved in the criminal case. For instance, in Anastazia Mchome v Salehe Ally and Another, Civil Case No. 11 of 1996, Rutakangwa J found the car driver liable for negligence partly relying on the defendant plea of guilty in the traffic criminal case: There is no dispute that the plaintiff was seriously injured by motor vehicle… which was being driven by the first defendant along Boma Road within the township of Handeni. On the evidence of PW 1, I am satisfied that the said first defendant, who on the evidence on record…was under the influence of liquor, was negligent and/or careless in his manner of driving the said motor vehicle along the road. This is demonstrated by the naked fact that he drove to the extreme right hand side of the road, whereas he was supposed to keep on the left side, and there hit and knocked down unconscious the plaintiff who was going in the opposite direction. This position is further buttressed by the defendant’s own plea of guilty in the Traffic (Criminal) Case No 33 of 1993 of the Handeni District Court to the charge of careless driving. In terms of section 43A of the Tanzania Evidence Act, 1967 as amended… the judgment in the case against the first defendant is conclusive evidence of his carelessness and/ or negligence. A failure to prosecute a traffic offence is not a bar to a negligence action: Huba Hashim Kasim vs M/s Tonda Express Ltd and Others (Civil Case 75 of 2010) [2020] TZHC 1300. In Mrs G, Mkawia v J Mrema and M/S Tanzania Motor Corp Ltd, Civil 3 Appeal 50 of 1980, a driver was acquitted on a traffic charge and in a subsequent action for negligence the Moshi Resident Magistrate’s Court dismissed the action on the ground that the accident was due to an Act of God and negligence on the part of the driver. On appeal to the High Court, Chua J held that the provisions of section 43A do not apply to acquittals: This provision does not apply to acquittals and if the legislature intended the corollary to be true they could have said so. At any rate in criminal cases the standard of proof from the prosecution is proof beyond reasonable doubt whereas in civil cases all the plaintiff has to do is to prove his case on a balance of probability. So it is not strange that a person may be acquitted in a criminal trial but on the same set of facts be found liable in a civil suit. Chua J rejected that plea of tyre burst as exonerating the driver from the negligence action and found him liable: In my view, therefore, the plaintiff did establish on a balance of probability that the 1st defendant was driving at unreasonably high speed as a result of which he failed to control his motor vehicle. The fact that a tyre did burst would not in my view automatically exonerate him from liability because there was evidence of the sketch plan that he had at least 25 feet within which he could have brought his vehicle under control if he had been driving slowly and thereby he would have avoided collusion. It is also significant to note that a trye burse could have been the product of the 1st defendant’s own negligence in driving with a defective tyre or driving so fast that his tyre was over heated and ended up bursting…. 4 Again, criminal conviction does not constitute a bar to the defendant’s defence of contributory negligence was held by the Court of Appeal for Eastern Africa in Robinson. v Oluoch [1971] E.A. 376 at page 378: The respondent to this appeal was convicted by a competent court of careless driving in connection with the accident, the subject of this suit. Careless driving necessarily connotes some degree of negligence, and we think, without deciding the point, that in those circumstances it may not be open to the respondent to deny that his driving, in relation to the accident, was negligent. But that is a very different matter from saying, as Mr. Sharma would have us say, that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the accident, and that he is precluded from alleging contributory negligence on the part of another person in subsequent civil proceedings. That is not what s. 47A states. We are satisfied that it is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident. This aspect of contributory negligence was further highlighted by the Court of Appeal in Benedicto Augustino and Two Others v Godwin Manase Zephania, Civil Appeal 8 of 1989. Godwin was straight ahead of line of cars driving his taxi along Uhuru Street in Dar es Salaam. All cars behind him had stopped and there was no car coming in 5 front of him. As he turned to the right so as to go to his usual parking space, suddenly he was hit by a bus that was overtaking cars that were stationary behind him. The bus had left the line of cars and was using the space earmarked for incoming vehicles. It was contended that although the bus driver was negligent, the taxi driver was negligent too and the provisions of section 43A should not be invoked to conclude that the bus driver was negligent. The Court of Appeal speaking through Omari JA held that evidence of contributory negligence was admissible notwithstanding the provisions of section 43A: …We do not know what facts were advanced in a traffic case that the accused agreed to and was found guilty of careless driving. But these facts in a civil case are sufficient to establish his culpability as careless driver. Mr. Riathatha asailed the inclusion of the result of the traffic case in a civil suit and disagreed with section 43A of the Evidence Act as used by the learned trial judge for this purpose. Section 43A in effect says that the final judgment of a court in a criminal proceed which declares any person to be guilty of a criminal offence shall be taken as conclusive evidence that person so convicted was guilty of that offence. Of course it shall be taken as conclusive evidence that the person so convicted and no other, was guilty of that offence, whether another person contributed to the happening of a collusion is a matter which calls for other evidence. And in this regard we have found that there was no contributory negligence by the taxi driver. His conduct was blameless and the conduct of the other party, the first appellant is fraught with carelessness. 6 This legal position was adopted by the Court of Appeal in Nimrod E Mkono v State Travel Serivces Ltd and another [1992] TLR 24. Thus, I hold that the trial court misdirected itself in holding that proof of negligence is conditional upon a conviction in a criminal case. In a negligence action, it must be proved that: (i) the defendant was under a duty of care towards the plaintiff to avoid the damage complained of; (ii) the defendant acted in such a way as to breach the duty of care of, (iii) that the damage suffered by the plaintiff was caused by the defendant’s breach of duty, and (iv) the damage was sufficiently proximate consequence of the breach of duty of care. Did the first respondent owe a duty of care to the appellant? It is common ground that the first respondent, Alex Parick alias Maghembe was a driver of the passenger bus with registration number T 299 AXP belonging to the second respondent. The common law recognises that the relationship between motorists and other road users is one of those that give rise to the duty of care. As stated by Lord Hope in Mitchell and another v Glasgow City Council [2009] UKHL 11 at para 16: …[W] where a person is injured in the course of his employment or in a road traffic accident. In cases of that kind it can be taken for granted that the employer owes a duty of care to the person who is in his employment or that a duty is owed to other road users by the driver of a vehicle which causes an accident. If commonplace situations of that kind had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of 7 proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable. In such cases this is so obvious that there is no need to ask whether it is fair, or whether it is just and reasonable, that the pursuer should recover damages. Did the first respondent breach his duty of care towards the appellant? The breach of duty of care examines whether the defendant was careless by failing to conform to the standard of care applicable to him. The governing principles in determining of motorist’s breach of duty of care have been summed up by Meagher JA in Marien v Gardiner [2013] NSWCA 396 at paras [33] to [37]: 33. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. ….. 34. The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users:…. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances… 35. Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident…. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". 8 36. The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events….[T]he driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. 37. Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path…. The point at issue in this negligence action is the breach of the duty of care by the first respondent. Did the passenger bus with registration number T 299 AXP, the property of the second respondnet, involved in an accident on 6 January 2024? Mr. Ngawa, learned Advocate, contended that there is evidence to show that the first respondent tried to overtake a lorry and lost control of the vehicle, and as a result knocked the appellant who was walking on the side of the road. The learned Advocate pointed out that this fact was corroborated by the sketch of the accident scene which indicates that the appellant was knocked down by the first respondent. In opposition, Advocate Mbugha argued that there was no proof of negligence let alone of breach of duty of care. The learned advocate dismissed the testimonies of the first, third and fifth appellant’s as conflicting and specifically discredited the testimony of the fifth appellant’s witness as hearsay. The determination of this issue calls for re-evaluation of the evidence and this being a first appeal, I am duty-bound to do so. There were two eye-witnesses to the incident. The first appellant’s witness was Hussein Ayubu Iddi. He testified that at 9 pm he was coming from a shop at Himiti area 9 and was returning home together with the appellant. The appellant was walking some ten paces ahead of him. He saw a passenger bus knocking down the appellant after losing control while attempting to overtake another vehicle. He rushed to assist the appellant and raised an alarm. Several people came to the scene. He recognized the passenger vehicle as belonging to the second respondent, Mtei Express Coach Ltd. It had registration number T 299 AXP. He recognized the passenger bus through moonlight and because it passed right beside him. The appellant testified as the sixth witness. He reiterated that he was returning home and was coming from a shop when he was knocked down by Mtei Bus. The only addition from the testimony of the first appellant’s witness is that he identified the vehicle that was being overtaken by the passenger bus to be a Scania lorry. I have not seen any conflicting testimonies between that of the first and sixth appellant’s witnesses. Among the people who rushed to the scene were the second and third appellant’s witnesses. The second appellant’s witness, Hamida Ally Said, the appellant’s sister went to the scene after receiving a phone call that the appellant was knocked down by Mtei Bus. He found the appellant lying down on the ground and bleeding profusely. At the scene she found her mother, the first appellant’s witness and a group of other people. She told the trial court that she hired a motorcycle to trace a passenger vehicle that knocked down the appellant and found it at the “round-about.” She noticed that it was Mtei Bus with registration number T 299 AXP. She then went to report the accident at Babati Police Station. 10 The appellant’s mother, Rukia Said, testified as the third witness for the appellant. She confirmed rushing to the scene and found the first appellant’s witness holding the appellant. The second and third appellant’s witness account is consistent that they found the appellant and the first appellant’s witness at the scene. The first, the second and the third appellant’s witnesses testified reporting the incident to Babati Police Station, the appellant being issued with Police Form No. 3 and being taken first to Babati Town Council Hospital (loosely referred as Mrara Hospital) and then to Manyara Regional Hospital. The Police Form No 3 was admitted as exhibit P.E. 3. Therefore, I disagree with the claim of conflicting testimony alleged by Mr. Mbugha. It was the defence of the second respondnet at the trial that the passenger bus was not involved in the accident as no report was made by the first respondent to its employer. There is no denial of the fact that the passenger bus with registration number T299 AXP travelled from Dodoma to Babati as alleged by the appellant. There is no denying that the first respondent was driving that passenger vehicle at the time of the incident. It is clear to me that the passenger bus with registration number T 299 AXP was involved in the accident in which the appellant suffered serious injuries. Mr. Jacob Mallya, the Operations Manager of the second respondent was the only defence witness. He did not disown the first respondent as one of their drivers. Under the 11 principle of vicarious liability, the second respondent is also liable. I hold the first and second respondents jointly and severally liable to the motor accident. In respect of the third respondent, Insurance Group of Tanzania Ltd, Mr. Jacob Mallya, produced in court the motor vehicle cover note from the third respondent. The cover note was for the period of 6 January 2022 to 5 January 2023 in connection with the passenger bus with registration number T 299 AXP. The third respondent was added as a third party to the suit, defaulted appearance at the trial but was represented in this appeal by Mr. Mbugha. A closer look at the motor vehicle cover note indicates that it was issued on 6 January 2022 at 7.21 PM and the accident occurred on 6 January 2022 at 9 pm. There is no clear evidence to show that the passenger bus was insured by the third respondent at the time it started the journey on 6 January 2024. On account of this uncertainty, I hold that the third respondent is not liable. The next question is: Was the appellant on the left or right side of the road? Is the accident attributable to the negligence of the first respondent or the appellant? The answer to this question partly depends on the testimony of the fifth appellant’s witness. A police officer, G.1803 Corporal Makema was an investigator of the traffic case which did not materialize. He testified about the sketch of the accident scene which was admitted as exhibit PE. 5. Mr. Ngawa contended that the trial magistrate misapprehended the contents of the sketch of the accident scene in connection with where the appellant was knocked down. The learned Advocate observed that letter C in exhibit P.E 5 was a location where the passenger bus stated to move from its left lane 12 to the opposite side of the road and not the place where the appellant was knocked down. Mr. Ngawa noted that letter X is the location where the appellant was actually knocked down. Mr. Mbugha discredited the testimony of the fifth appellant’s witness for the reason that the sketch of the accident scene was prepared a day after the accident and was not derived from eye-witness’ accounts. I have examined the sketch of the accident scene and the testimony of the fifth appellant’s witness. He testified that the appellant was crossing the road and he was knocked down after the bus had gone off road and hit him at the side of the road. These descriptions are found in two keys to the sketch of the accident. Letter C indicates a location where the passenger vehicle started moving from the road to avoid knocking the appellant. Letter C-X is a location where the passenger bus moved and knocked the appellant. Letter X is a location where the passenger bus knocked the appellant. From these accounts, I am satisfied that the appellant was crossing the road and was knocked down in the process of the first respondent trying to avoid knocking over the appellant. These facts bring the case within the realm of contributory negligence. The plea of contributory negligence rests on the plaintiff’s failure to take reasonable care for his personal safety in the prevailing circumstances of the accident. As was stated by the Privy Council in Nance v British Columbia Electric Railway Co Ltd [1951] 2 ALL ER 448 at 449: …. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued and all 13 that is necessary to establish such a defence is to prove…that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full. Contributory negligence is a partial defence reducing the quantum of damages payable to the plaintiff on account of his or her failure to take due care for his or her own safety and thus caused loss to himself or herself. Contributory negligence, a common law doctrine, is a statutory defence under section 11 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 RE 2019]: Where any person suffers damage as the result partly of his own wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage shall not be defeated by reason of the wrongful act 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: As a general rule, the law assigns greater responsibility to the motorist than the plaintiff because, as echoed in Wells v Trinder [2002] EWCA Civ 1030, at [19]: What is important to bear in mind, however, is, first, that the pedestrian is having to guard against traffic coming from opposite directions, whereas the motorist is concerned only to look essentially ahead; secondly, that the 14 motorist is driving a potentially lethal piece of machinery, whereas the pedestrian is basically harmless. This rule was also restated in the Australian case of the Nominal Defendant v Ross [2014] NSWCA 212 at 251 [46]: While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind, that is neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.’ In the absence of evidence that the appellant moved suddenly into the road and the first respondent could not see him before he stepped into the road, I would apportion liability as to 65 per cent against the respondents and 35 per cent against the appellant. This means that the appellant’s damages will be reduced by 35 per cent. The plea of contributory negligence relates to damages. It is clear that the appellant was seriously injured by the passenger bus with registration number T 299 AXP. From the evidence of the fourth appellant’s witness, Dr Annande Kubwaeli Saleu, medical report from Kilimanjaro Christian Medical Centre (KCMC) (exhibit PE 4) and Police Form No. 3 (exhibit PE3) filled at KCMC, the appellant suffered injuries on the 15 head, left upper limb, and left leg, and lost consciousness for some time. He had his left arm amputated and was hospitalised for three months. The appellant pleaded that as a result of the motor accident he has suffered permanent incapacitation of his left arm and prayed for the following reliefs: (i) The Compensation of Tanzanian Shillings 256,886,355/= (Two Hundred and Fifty Six Million, Eight Hundred Eight Six Thousand and Three Hundred Fifty Five only) being specific damages for compensation due to the injuries he suffered from the accident caused by the car owned by the 2nd Defendant and driven negligently by the 1st Defendant, categorized as follows; (a) Payment of Tanzanian Shillings 3,086,355/= being specific damages for medical expenses. (b) Payment of compensation for loss of income for 15 months from the date of accident 06/01/2022 to 18/04/2023 to the tune of Tanzanian Shillings 9,000,000/= and (c) Payment of compensation for loss of prospective/future earnings for 34 years before retiring age of 60 years to the tune of Tanzanian Shillings 244,800,000/= from the date of accident. (ii) The general damages to be assessed by this honourable Court for pain, injuries and general inconvenience occasioned by the permanent incapacity. (iii) Costs of the suit (iv) Any other relief(s) this honourable Court may deem fit and just to grant. From the evidence adduced, there is proof of certain medical expenses (exhibit PE 1) but these should be distinguished from those covered by health insurance as stated by Dr Annande Kubwaeli Saleu in cross-examination. Having examined the bundles of receipts admitted as exhibit PE 1 some of which are too faint and given that the appellant had health insurance, I hold that the appellant is entitled to be reimbursed additional medical expenses incurred totalling 400,000/= TZS. 16 The appellant sought to prove the second and third head of specific damages by stating that he was masonry labourer with no specific contract but he was earning 20,000/= TZS per day. Under these circumstances, I hold that the second and third head of specific damages remain unproved. As to the general damages, these are at the discretion of the court and may accordingly be awarded. In awarding the general damages, I have taken into account the principles that the amount awarded should be reasonable, no monetary award can fully compensate physical loss, and excessive amounts are likely to inflate insurance premiums as was held by the Court of Appeal in Sanlam General Insurance Tanzania Ltd v Dennis Charles and Another (Civil Appeal No. 51 of 2021) [2024] TZCA 105: We appreciate that no sum of money will fully compensate the first respondent for the loss of arm. In any event, the High Court was enjoined to ensure that its award was reasonable and moderate, but also commensurate with the loss suffered. It was also important that the court ought to have reflected on the fact that excessive awards in bodily injury cases, arising from motor vehicle accidents, could potentially result in enormously high premiums for insurance of all kinds, an occurrence that must be avoided lest the insurance industry in the country crumble…. Due to the diminished ability of the appellant to work as fully able-bodied person and the injuries suffered, I award him the sum of 58,500,000/= TZS having deducted 35 per cent from the total damages. 17 Interest should be pleaded in this case, and was held in Zanzibar Telecom Ltd v Petrofuel T. Ltd (Civil Appeal No. 69 of 2014) [2019] TZCA 176: “as a matter of substantive law, the court cannot grant interest in a case where such interest was not pleaded and proved.” In the instant the appellant interest was not pleaded and it cannot therefore be awarded. In conclusion, the appellant is entitled to specific damages totalling 400,000/= TZS and general damages totalling 58, 500,000= TZS. The appellant shall have his costs in this appeal and the trial court. It follows that the appeal stands allowed. DATED at BABATI this 5th day of December 2024. F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 5th day of December 2024 in the presence of the appellant in person and in the presence of the second respondent’s representative, Mr. Jacob Mallya, and in the absence of the first and third respondents. B/C: Ms. Anna Mathayo (RMA) present. Right of appeal explained. F.M.MIRINDO JUDGE 18