Kabanda & Another v Kasanga (S.C.Z. Judgment 2 of 1992) [1992] ZMSC 103 (20 June 1992)

MANFRED KABANDA AND KAJEEMA CONSTRUCTION v JOSEPH KASANGA (1990 - 1992) Z. R. 145 (S. C.) SUPREME COURT GARDNER., SAKALA AND CHAILA., JJ. S. 2lST JULY,1992 (S. C. Z. JUDGMENT NO. 2 OF 1992) Flynote Damages - Vicarious liability - Allocation of damages whether proper. Damages - Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act - Global award - Whether proper. Damages loss of expectation of life - Quantum. Tort - Negligence - Evidence of criminal liability - Use of establishing negligence. Headnote The facts of the case arose out of a road traffic accident in which the first appellant, while driving a vehicle belonging to his employer the second appellant, hit into the back of a stationary truck, killing four passengers. One of the dead passengers was not an employee and after damages were awarded to her representative the appellant appealed against the order claiming that she had not been authorised to be a passenger. One of the issues which arose was whether the employer was vicariously liable where an employee had flouted instructions not to carry passengers. Questions of damages related to the nature of the award and its apportionment between the appellants. p146 Held: (i) (ii) (iii) An instruction to a driver not to carry unauthorised passengers did not limit his employment therefore the employer remained vicariously liable for any negligence on his part unless there was specific proof to the contrary. However it was improper for the Court to allocate damages to be paid partly by each defendant. Even where there is no proof of the exact damage suffered it is improper to make a global award and it is better to allocate the damages between the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act and take into account the effect of inflation. Despite changes in English law, results of criminal cases may not generally be used to establish civil negligence in this country unless the criminal evidence relates to an admission of negligence. Kabwe Transport Co. Ltd. v Press Transport (1975) Ltd. upheld. Cases referred to: (1) (2) (3) (4) (5) Hamilton v Farmers Ltd (1953) D. L. R. 382 (N. S. C. A). Co-Operators Insurance Association v Kearney [1965] S. C. R. 106; 48 D. L. E. (2 ed.). Twine v Beans Express Ltd. (1944) 62 T. L. R. 450. Kabwe Transport Co. Ltd. v Press Transport (1975) Ltd. (1984) Z. R. 43. Litana v Chimba and Another (1987) Z. R. 26. For first and second appellants: S. Akalutu Z. S. I. C. For the respondent E. M. Mukuka, E. M. Mukuka and Co. Judgment GARDNER, J. S.: delivered the judgment of the Court. This is an appeal against a judgment of the High Court awarding K35,000.00 against the first and second appellant for damages suffered by the deceased Margaret Nangabo as a result of the negligent driving by the first appellant of the second appellant's motor vehicle. The facts of the cases were that the first appellant was driving a vehicle belonging to his employer, the second appellant, at Kashitu on the Ndola-Kapiri-Mposhi Road. When the scene of the accident was investigated by the police, it was found that the vehicle driven by the first appellant had driven into the back of a truck in front of it at night. The driver, that is the first appellant, was alive at the scene but four of his passengers were dead. One of these was the deceased. DW1 gave evidence that he was called to the scene of the accident and he found that the vehicle of the second appellant's company had been involved in an accident and was damaged beyond repair. He said that one of the passengers who had been killed was the senior buyer of the second appellant company which is one of the subsidiary companies of the holding company of which he was the transport operations manager. He said that the deceased in this case was not a member of staff of the second appellant company and that the drivers of that company were not allowed to carry passengers, which instruction was written on the doors of the vehicle on the driver's side. He confirmed that the driver was on duty returning from a buying expedition and that authority for carrying passengers could be obtained from the second appellant company. The learned trial judge found that in the absence of evidence from the first appellant, it was clear that the first appellant had collided with the truck in front of him at night as a result of his own negligence. He p147 referred to the fact that the first appellant had appeared before him as a trial judge in a case of causing death by dangerous driving and that due to the intricacies of the criminal law the charge was reduced to careless driving which the first appellant had readily admitted. The learned trial judge then found that there had been no evidence from a representative of the second appellant company that the deceased was not authorised to travel as a passenger in the vehicle. However, he went on to discuss the question of the law relating to vicarious liability and found that he would follow if necessary the case of Hamilton v Farmers Limited [1] which decision was followed in the case of Co-Operators Insurance Association v Kearney [2]. In those two cases the Courts had found that the decision in the case of Twine v Beans Express Ltd. [3] should not be followed, on the ground that the prohibition against giving lifts to unauthorised persons did not limit the servant's employment, which was to drive the truck, but was merely a direction as to the method of so doing. Consequently, the learned trial judge found that the first appellant was negligent in causing the death of the deceased, that he was driving in the course of his employment by the second appellant who was liable and that the respondent had suffered damages in the sum of K35 000.00. He then ordered that the first appellant should pay K15 000.00 of such damages and the second appellant should pay K20 000.00. Mr Akalutu on behalf of the second appellant argued a number of grounds of appeal. The first was that the damages should not have been awarded as a global figure but should have been apportioned between the Law Reform (Miscellaneous Provisions) Act and the Fatal Accidents Act, and further that, that having been done, the damages awarded under the Law Reform (Miscellaneous Provisions) Act should be subtracted from the damages awarded under the Fatal Accidents Act. Mr Mukuka on behalf of the respondent did not contest these grounds of appeal and we also agree that it is improper in such cases to award a global figure of damages. It is better for the benefit of the parties, and, indeed, of this Court, to allocate the damages between the Acts which we have mentioned. As to whether damages under the Law Reform (Miscellaneous Provisions) Act should be deducted from an award under the Fatal Accidents Act, there was, in this case, no evidence that the beneficiaries of the estate of the deceased were the same as the dependants so the question does not arise. Mr Akalutu then argued that reference to the outcome of the criminal case against the first appellant should not have been used to support the finding of negligence. We agree that, in accordance with our judgment in Kabwe Transport Ltd. v Press Transport Co. Ltd. (1975) [4], although there has been a change in the law in England, that change does not affect the law in this country and the results of criminal cases may not be referred to in support of findings of negligence in a civil case. However, in this particular case, as we have indicated, the evidence of the respondent and of the police officer was that, at the time when the first appellant was interviewed by the police in the first instance, the first appellant had admitted that he had run into the back of the vehicle in front of him because he had not seen it until he was too close, and when the first p148 appellant was charged with a criminal offence by the police he admitted the charge of dangerous driving. That evidence was admissible although it related to a criminal case, and the learned trial judge's finding based on that evidence cannot be disturbed. As to the learned trial judge's discussing of the law relating to vicarious liability, in view of the finding in this judgment, there is no need for us to discuss the cases referred to by the learned trial judge. We are quite satisfied, despite the arguments of Mr Akalutu, that the senior buyer, who was unfortunately killed in the accident, had authority, as the most senior person in charge of the vehicle belonging to the second appellant, to authorise the driver to give lifts. We appreciate that Mr Akalutu argued that only the managing director of the second appellant company could give such authority but we find such an argument to be unrealistic in the circumstances of this case and indeed in the circumstances of the normal conduct of the running of the company. We also agree with the learned trial judge that the onus was on the second appellant to prove that the deceased in this case had not been authorised. In the event no evidence was called that the second appellant had not authorised the driver to carry the deceased as a passenger, and, on the facts, it is most unlikely that the driver of the vehicle would have given a lift to anyone who did not have the approval of the senior buyer. For the reasons we have given the appeal against the findings that the second appellant was liable in damages cannot succeed. As to the question of damages, as we have said, we agreed with the comments made by Mr Akalutu as to the improper method used in this case for the allocation of damages. We would also point out that both appellants are equally liable for the whole of the damages and it was wrong for the learned trial judge to allocate damages to be paid partly by one defendant and partly by another in the circumstances of this case. As to the quantum of damages which had not been argued, we take this opportunity to indicate what we consider to be the effect of inflation since the case of Litana v Chimba and Another [5]. That judgment related to a case where a High Court assessment of damages had been made on 12 July, 1987, and this Court said that damages for loss of expectation of life at that date should be K3 000.00 regardless of the age of the deceased. The assessment of th th March, 1991, by which time the rate of exchange relating to damages in this case was on 27 hard currencies and the kwacha has increased to a very great extent. Based on the increase in inflation between the date of the Litana case and the date of this case, we would award damages of K25 000.00 for loss of expectation of life at the latter date. Despite the fact that there was no evidence relating to the exact damages suffered by the dependants as a result of the death of the deceased, we appreciate that there must be such damages and we would award a nominal sum in that respect of K10 000.00 under the Fatal Accidents Act making a total award of K35,000.00. For the reasons we have given, the appeal is dismissed with costs to the respondent. Appeal dismissed. __________________________________________