Mohamed and Anor v Chumbu (SCZ 3 of 1993) [1993] ZMSC 34 (23 March 1993)

IN THE SUPREME COURT OF ZAMBIA (10) HOLDEN AT LUSAKA BETWEEN; SCZ JUDgOT NO. 3 OF 1393 ABRAHAM MOHAMED 1st Appellant ALAMTARA TRANSPORT LTD. 2nd Appellant And SAFELI CHUH3U Respondent CORAM: Gardner, Sakala and Chirwa JJJ. S 23rd February and 23rd March 1993 A. Chiinga of Chitabo and Chiinga Associates for the Appellants 0. K. Chilupe of Chilupo « Co. for the Respondent. Gardner J. S. delivered the judgment of the court. ^■Cases referred to: (1) “The Edison” (1933) AH’. ER 144 (2) Clippens Oil Company -v- Edinburgh and District Water Trustees 1907 A. C. 291' (3) (4) (5) Dodd Properties -v- Canterbury City Council (1979) 2 All ER 118 United Bus Company of Zambia Limited -v- Shanzi 1977 ZR 397 Riches -v- Westminister Bank Limited (1943) 2 All ER ‘ J • • ■■ •', j ’ f ’ . • "r • • • - • -. This is an appeal from an assessment of damages by the deputy Registrar awarding £2,947,478.20 together with interest for the loss of the respondent's motor venicle. The history of this case is that the respondent’s(motor vehicle■ • was damaged beyond repair in a motor accident. The respondent claimed damages from the first appellant as the driver who caused the accident and against the second appellant as the employer of the driver. The learned trial judge found that the accident was caused by the negligence of the ' first appellant but held that in view of the fact that the second appellant had said that his motor vehicle was roadworthy before the accident the Second appellant was not liable. The learned judge however, found that the first appellant was driving in the course of his employraeot by the second appellant. ' " ’ < The learned judge made an award of damages in the sum of .<150,000.00 for the value- of the motor vehicle and for general damages to be assessed. 2/—... ; J2 : (11) The respondent appealed to this court against the learned judge’s finding that the second appellant was not liable in damages and at th~» nearing tn^ .appeal was not opposed . This court found that the second ■ appellant was vicarioysiy liable in damages to the respondent. Wo accordingly awarded damages against it for “titt damages awarded by the learnod judge". Tne respondent then applied to the Deputy Registrar for assessment of damages, and, at the hearing of the application, put forward an affidavit by the respondent to the effect that the respondent's vehicle ja Volvo 240 GL Sedan was brand now at the time whan it was completely written off,und that tne cost of purchasing a new vehicle in Juno 1992 was K2,947,478.20. No evidence of any other general damages was adduced before the learned Deputy Registrar who awarded damages in the sum of K2,947,478.20 plusJ interest. The appellants now appeal against that award. , On benalf of the appellants Fir. ChiInga pointed out that the original ' award of the trial judge specified that the damages for the loss of the vehicle should bu K150,000.00 and that the Supreme Court had made an order for the same damages. He maintained that the only assessment. should be for general damages about which no evidence had been led end ho suggested tint K15.00G would be an adequate sum for the unquantifled general damages. Hr. Chilupe on beihjlf of the respondents argued tnat the /.respondent should be put in the same position as he was before the accident and that it was only fair that he should receive now the current purchase price of a new vehicle similar to the one which was damaged beyond repair. He mjintain*^ that the respondent had every right to ask the Deputy Registrar damages in the sum claimed. In considering tho arguments in this appeal we note that the main claim in the statement of claim was the value uf the vehicle namely KI50,000.00 plus general dam.ujos. Thore was no specific claim for interest. The general rule as to cne normal measure of damages for tort is the value of a chfittel 2t XfW time pf the loss (see "The Edison" 40 Mr. . Chilupo argued that the respondent did not have the money to purchase a new vehicle mnudiately after th^ accident s<> that ha had to wait until ho obtained judgment against the second appellant before tie would i>2 in a position to purchase a new vehicle The law rotating to the result of the impecuniosity of the piaii.tiff is referred to at page 241 of iiegregor on (Jiwigas (14th edition) rind the cases out therein. "The Edison" cise is c^pacjd with dictum of Lord Cull ins An Clipp^is Oil Canpany -v- Edinburgh and District Water Trustees (iT tn it; J3 (12) In my opinion the wrongdoer must take his victim talem ■ qual&n, and if the position of the latter is aggrieved because ha is ' without the iraans of mitigating it, so much the worse for the wrongdoer, who has got to be answerable for the consequences flowing from his tortious act." In the Edison case this dictum was cited and it vias concluded that it was net in point since it was actually "dealing not with the measure .of. damages but with the victim’s duty to minimise damages, which is quite a different matter". Various other cases referred to in Hcgregor which relate co cho assessment of damages when, for instance, there is'delay in carrying out repairs to a car or to real property are not relevant to the issue, but in particular in Dodd Proper­ ties -v- Canterbury City Council W it was held that one must first arrive at the normal measure of damages before considering the issue of mitigation and before Lord Collins dictum became relevant. As we have said the normal measure of damages is the value at the time of the loss and consequently the award of K15Q,000.00 as claimed in the writ was the correct figure for damages. ,We note that in the judgment of the learned trial judge no reference was made-to interest and no such cl 4m was included in the statement of claim. However, 'the learned. Deputy Registrar made an order for interest to be payable, and, although no date from which interest snould run was monUoiiod, it would be proper to infer that interest »if payable ^should run from the date of the loss. In the case of ; United 3us Compmy of Zambia Limited -v- Shanzl W wo said at page 417 —...................... . ................. ..... ......................................... ........................................ ................. ..................—- — ■— ■ — ■■ M “It shodid be runted that under the authority of Riches -v-^Wostminister Bank Limited 1^ it js not necessary for a plaintiff to claim interest in fus preaUings' and the result of that decision in my view is that it is the duty of the court to award interest unless there is good reason for che exercise of its discretion not to do so”. Although we have held that the award by the learned Deputy Registrar in respect of the loss of the vehicle cannot stand, and, although tucre is no evidence to support an aware relating to any other general damages, the deprivation of the money required for the purchase of a replactiiwnt motor vehicle could raise an entitlement to general damages which should be compensated for by an award of interest. In the circumstances’ of this case therefore we find that interest was properly awarded by the learned Deputy Registrar in default of the learned trial judge’s having done so. We hasten to comment that when a trial judge fails to '.ward interest it would not U* We normal way bcprOp.jr appiy3^'the Registrar on assessment of damages to remedy the defect. The proper course would he co apply far a review of a judgment and in default of a revision to appeal to this court. However, as the ssma result should have occurred which <!vor method was adopted »and in order to do Justice in this case*we order that interest; should bo payable on the amount awarded from the date of the accident. * At the time when the claim first arose the rate of bank Interest was very low * - |wt since than over the y^ars it has become vary high indeed.? Taking this into ► consideration, we award interest over tha whole of the ported at the rate of 30 .percent pir annum from th? date of the accident, the 30th November 1385, until e the date of the assessment, the 6th of November 1992. ■ The appeal is allowed it.no assessment by the Deputy Registrar is set asida and in its place we -sward K150,0Q0,G0 daiaages for the loss of dw motor ' vehicle and interest at the rate of 30 percent par annum from the date of the \ * accident, tho 30th November 1985.to the date of assessments the 6th of November ■ • 1992. Costs of this -5 appeal to tfe appellants. B. t\ {iariiiK'r SUITOR COURT JUDGE E. L. Sakala SUPREME COURT JUDGE • •' ■ * • • • -- v C -' X * • ,x' '. ' D. K. Chii’wa SUPREME COURT JUDGE