19750825 TZHC Mwanza

IN THE HIGH COURT OF Thi'JZANL-i J 't7 (Pc) CIVIL iPPAL O. 5 OF 1975. PV (From the decision of the District Court of ThRflih at rii'RfliiE in Civil Case No. 9 of 1974 - Before J. Mackanja,.Esq., Resident Meg. 4 MATIKU GhrYA . JPPhLLrIT Vel'sus . . ... JOHANNES ODOYO. • . • . . .. . 1LESPONDENT JUDMiNT . LUGKINGIRA, AG. J.: he appellant sued f:or damag€s amounting to Shs. 2 1 331/50 as.compe- nsation for bodily injury, loss of blood and lo3s of income on account of the battery committed on. him by the rsponthnt. The facts of tho ncident as funU by the learned r-ie1 magistrate are summar.iøed in the following exttt from his judgment; "On 18 2 74 the defendant (respondent) was beating his wife. The plaintiff (appellant) was standing nearby, and one Ogalo Owino (P.W.2) was with him. . There had been no previous qua'rel.betweentie. plaintiff and the aefand..nt itnd, I think, due to good ne.ighbourlinss'the plaintiff intervened to stop. the fight. As,the defendant aimed to box his wife, while the p'aintiff was e'deavouring to sop.the defendant from further assaulting his w • ie, thed.efendant's i f e dodged tne blow and instead the defendant.. boxed the plaintiff oelow his right eye. .... A wound was thus occasioned which had to be stitched in hospital. The scar was shown to the court and was. seen. by the court," ... .• - After thua stating. the facts tie.,iearned' trial magistrate en oritp find that no anger as directed t the plaintiff and his being st?uck was purLly ..inaer.ent:., .Iethere'ore- held that in the absenp.e of an intentional trespass-on his person,. the plaintiff had to, prove negligence.., Since he was of the view, that negligence had not been proved he dismised the suit. The pl.intiff brought the present appeal. Both part.es elected to absent themselves at the.hearin.a. This court will therefo±'e proceed on. the available record., In his petition of apa._l the appellant insists that his being struck by the respondent w calculated and delib erate. Thc.t was indee.d a question of fact under the better control of the. tr,al court. This Court has not had the advantage of. seeing the litigants . not even, on appeal .- heice: 'there is no bsi.s upon which it can depart. the find'ing of the court. .be]. I do not theref5re fe1 41ificd to intrfere The facts of the case immediately call to mind the doct1ne of. ri*. asurti6rio This cas ias it t - ri'-d on th - t bsis hut I. proos tc n}ce seine r'narks in tn:t connection for th pllant actu11y zan risk. It has been aid tha±, a plaintiff may consent to run the risk of accidntal harm which would other.wise be actionable as due to the negligence of, him who caused. • it. In that event the plaintiff should not be heard to complain and the maxim volenti non fit in,juria is applied.. The consent may be viewed either as an undertaking by the plaintiff to forego his rights for an avowed breach of duty or an undertaking to exempt the .wongdoer from the duty of care which would otherwise be owing to the plaintiff. Fortunately or unfortunately, whichever way one looks at it, the present case also falls under the class of cases technically te-rmed "rescue cases." It would appear that in the absence of express consent the law would not imply a consent to risk harm ....ithout remedy where the plaintiff risks life and limb tores:cue a third. pty from danger generated by the negligent actions of' the, df;endant I have not 'been abfe to discover a . home decision on this issue. but I believe t.he law on the matte.r is substantially the sa.m as in England. It was thu.s laid down b' th Lngli'oh Court of 'ooi'in Hynes v. Harwood (1935) IK.B.46 that - 'tth dbctrmné'of the aseumt±on'cf risk does not apply 'where the plaint'hos, u.nd.r an exigency caused by the defaaht 's rongful misconduct, conscioualy and libeately' faced' risk, ecen of death, to rescue anotner, forn imminent danger of personal injury or de.th, whether the person endhngréd is one to shorn he' oweS a duty of protection, as a member of his family, or is a mere stranger to 'shorn he coes .....:n.... such special duty." It was s imi1arljr'saidby Polibok (TORTS p.370). that.- "the iaaos 'ht think o meanly of makind as':td. ' hoid it' othie'e than a nOtur1 and piO'babl" .... consequence of a helpless person being jnit in ........' danger that some able - bodied person should expose himself to the sa'rñe danger to effect a rescue." In the instant case, the resronot" sea in 'the process of beating his wife. The woman ran to the app1lant for protection. The appellant as promptly accepted and. a'sumed. the responsibility to save' and protect her from further punishment. He was struck and injured in the process. hccording to the above view of 'thd' law the appellant's action did not amount to an assumption of 'r,iek for which the maxim volenti non fit injuria would apply. The respondent continued to owe a duty of n'tre to the appellant knowing as he did that his uñalu1 aseault on 'hi's wife would prompt an able- bodied person like the d.ppellent to 'attempt 'a rescue. The learned trial magistrate dismissed the suit on the ground that there was no evidence of negligence 0 He found that the trespass on the appellant's person was 'purely inadvrtent." I may be excused for'exprssi'ng unfamIliaritr with the latter expesdion but I be1ieê the magistrate ñethit that the trespass was unintentional. I do not' think that it ou1bsough to show absdnce of intention. I think it'is nacessary to 'go further i.d' show tht"the trespass could. not by any diligence, caution and skill be a'oided. The onith' of demonstratin this lies 'on the defendant where the plaintiff 'proves' the tespass and the injury resulting therefrom. If that is proed the defence of inevitable accident then arises and it is probably this defence to which the learned trial magistrate was alluding. This defence took"shepe and crystalised sincethe decision in Stanley v Powel (1891) I Q. 86.' In that case the daf--ndant While firing at a bird accidentally and without negligence shot the plaintiff with a pellet whIch'rebou'nded from a tree. It was held (Denman, J.)'that 'thb plaintiff could not recover as the injury'was accidental. In the much earlier' case of Weaver v. Wa±d (1607) Hob. 134, the plaintiff and the defendant both soldiers, were skirmishing 'In military exercise when thO ° defendant, cadualiter et per i'nfortuniü et contra voluntatem suam (i.e.' 'accidentally and ihv'oluntarily),' shot the plaintiff.: Judgemntwd.s enterCd"for the plai'nfiff presumably on'thd'g'o'und t'hat"th defend.ant'had consciously engaged in the exercise with a loaded gdn and the ccnsequences' of this were not too rmo'te to foresee. It was stated, "and, therefore, no man shall be' excused' for a trespass ........ except it may be judged utterly without his fault; ad if a man by force take my'hand' and strike'you." ' I have no 'qUarrel with the above dCciions but I do flotthi.k thei are relevant to'the present case. It does"not"occur to me that the'"defence' o±' inevitable accident is or would beavailhble in rescue chdes 'wh'e'"the injury is necessitated by thd defendant's "wrongful actions or othissions. .''This 'type of situation demands that the defondh±it dxi erciseo the gretest 'deged of oare, even to 'total strangers,' not' preVicdsl in sighto eotp1ntion, who, from a moral obligation, may attempt to arrest the consequences of his wrongful actions. Khenevr tha injury complained of is the result of a 3 to wro ngful act,.. I apprehend that the law would not require/know whether Vthe act was negligently done for the decision to do it is already a negligent one. It was therefore improper for the learned, trial magistrate to dsmiss the suit on the ground that negligence had not been proved.. I will accordingly -s- : iold that the respondent was liable to the appellant in damages, allow the appeal on that point and set aside the judgement and order of the court below.. Finally, there is the question of the damages to be considered. It is noted that the appellant claimed bhs. 2,331/50 "as compensation of body injury, loss of blood and loss of income - farming." I take the first two items to represent generol and the last to roaresent special ucimages. Unfortunately,- in his efforts to dismiss the suit it never accurred to the trial magistrate that no was bound to assess damages, just in case. The trial court, even when dismissing tha suit, should assess thcLanaiges it would have awarded had the action succeeded. Lest I prejudice the matter by making further observations on the claim, I will straight away remit the matter to the trial court to assess the damages as it considers appropriate. As the parties did not appear there will be no order as to costs of this ippeal. However, the trial court's order on costs is set aside and it is ordered that the respondent bears the same. MWANZA K.S.K. - UGnKINGIRd 25. 8. 1975 PCTING JUDGE