The 1st witness for the plaintiff was Redgson Nchoma whose occupation is bus driver
in the employment of the plaintiff and stationed at Makata Bus Depot. On 25th May 2002 he was driving the plaintiff's double decker
bus from Chiradzulu to the new Limbe bus depot, which is located near Limbe Market along Dalton road. After crossing the bridge on
Limbe stream, the engine of the bus went into neutral and as a result the bus lost momentum. He tried in vain to force it but only
managed to reach slightly beyond the bus stage that is located opposite Limbe Market on Dalton road. Since the bus could not go any
further, he rolled it downhill and parked it at the bus stage when passengers were requested to disembark. He placed 2 reflective
triangles, one in front and the other at the rear of the bus to warn other drivers that there was a broken down vehicle. The time
was around 3.45 in the afternoon. He sent the conductor to report about the breakdown at Makata depot. At about 6.30 o'clock in the
evening an auto-electrician came and examined the bus. His findings revealed that the gearbox had jammed and the only course of action
was to tow the bus to Makata Depot. The driver waited in the bus for the towing vehicle until 8.00 o'clock in the evening when he
was told to go and drive another bus to Chiradzulu because there were a lot of people who were travelling there. The time he left
the scene, the accident had not yet occurred. There was no cross examination and the witness was released.
The 2nd witness for the plaintiff was Elias Chitseko, another bus driver in the
employment of the plaintiff and stationed at Makata bus depot. He stated that on 25th May 2002 he was instructed by his bosses to
go and tow a broken down bus from Limbe. He left for Limbe in another bus in company of a mechanic. When he arrived at the place
where the broken down bus was i.e. on Dalton road almost adjacent to the new Limbe bus depot he parked the bus on the dirty verge
on the same side of the road as the broken down bus. At the scene he found that there were reflective triangles which were placed
in front and the rear of the broken down bus. He arrived on the scene when it was already dark. He stated that immediately after
their arrival at the scene, the mechanic went straight to fixing the towing bar on to the broken down bus. In order for the mechanic
to see properly what he was doing, the parking lights of the broken down bus were switched on. The lights of the bus which was intended
to tow the broken down bus were completely switched off as there was no reason to keep them on. Whilst the mechanic was still working
on the towing bar, the driver left for the new Limbe bus depot. As he was about to enter the depot he heard a braking sound of tyres,
as if a speeding vehicle was attempting to stop. Next he heard a sound of a collision. Immediately this witness rushed back to the
road and found that a pick-up had crashed into the broken down bus and crushing the mechanic as well. The pick up was being driven
towards Limbe and its driver had left his proper left lane and veered to the extreme right where he hit the stationary bus together
with the mechanic. The mechanic was pulled out of the collision scene. He was badly injured and taken to the hospital where he was
pronounced dead on arrival. The witness stated that immediately after the accident, the people who were in the pick up started throwing
bottles of beer out of their vehicle. In cross-examination he stated that the broken down bus was parked on the lay bay which has
tarmac. The towing bus was parked on the lay bay too just behind the broken bus. He parked like that to enable the mechanic to fix
the towing bar to the broken down bus first. At the time of the accident the mechanic was in the process of fixing the towing bar.
The towing bar had been brought by another vehicle. He confirmed that parking lights of the broken down bus were on. He also said
that he also saw the skid marks of the pick although it was night. He stated that by making reference to the beer bottles he is suggesting
that the driver of the pick up was drunk. He stated attempts to reason with the pick up driver were fruitless as he was unco-operative
(meaning doggy). He confirmed the position of the bus before the accident.
The 3rd witness for the plaintiff was Mwamadi Fazili, technical manager for the
plaintiff. He is an engineer by profession. He stated that on 25th May 2002 he was informed that plaintiff's bus registration number
BJ 4397 had been hit by the 1st defendant's Toyota Hilux registration number BH 9053 and that one of the plaintiff's employees had
died on the spot. He stated that earlier that day the bus had been reported to have developed an electrical problem by its driver.
One of the plaintiff's auto-electrician examined it and it became necessary to tow the bus to the plaintiff's repair centre at Makata
depot. Another bus had been sent to tow the broken down bus. The accident occurred when arrangements were being made to tow the bus.
Upon hearing of the accident, the witness rushed to the scene where he found the broken down bus, the defendant's vehicle and the
towing bus. He observed that the two buses were parked on the dirty verge of the road and the defendant's vehicle veered off its
lane to hit the stationary bus. He further observed that the bus had been extensively damaged. The witness was in charge of the repairing
work of the bus. Among the things he did were to procure a police report of the accident at a fee of K2,000.00. He proceeded to get
an independent assessor to evaluate the extent of damage to the bus. The plaintiff was invoiced by the assessor K12,000.00. He tendered
the petty cash voucher for K2,000.00, the police report and invoice for K12,000.00 in respect of inspection of accident damaged double
decker – BJ 4397. He also sent the bus for repairs at PEW (Malawi) Limited and that the bus was off the road for 117 days.
PEW (Malawi) Limited submitted a detailed quotation dated 29th May 2002 as follows: -
Repair Accident Damaged Double Decker BJ 4397 Fleet no. 2005
Following our inspection of the above, we wish to submit our quotation for consideration as follows:
K50,000.00 for third party loss of use
K1 million third party property damage
K5 million third party death or bodily injury.
The 1st defendant by policy number BTDMC 10050560101 duly effected a renewal of their insurance for the motor vehicles including
the subject motor vehicle for the period of insurance from 1st September 2001 to 31st August 2002 during which period the accident
occurred in respect of which the proceedings in this action were instituted. The witness tendered Exhibits D1 to D4 relating to his
evidence captured above in this judgment. In cross examination the witness explained that if there is excess in terms of maximum
liability, that excess goes to the insured, like in the present case, it would be directed against the 1st defendant. This marked
the end of the evidence in this matter.
ANALYSIS OF THE LAW AND THE EVIDENCE
The defendants failed to bring the driver of motor vehicle registration number BH 9053 a Toyota Hilux. At the time of the trial of
this mater, this driver, Mr Munyika who was a Zimbabwean was no longer in Malawi and unable to come to court to challenge the evidence
of the plaintiff on the occurrence of the accident. It is only fair to proceed on the basis that the defendant's liability for negligence
is not in dispute. The court will proceed on the basis that there was no contributory negligence on the part of the plaintiff.
Be that as it may, the court still needs to decide whether the plaintiff's claim for special damages at K7,968,399.41 (as the writ
describes it) was made out at the trial.
By their amended defence, the defendants contend that the plaintiff failed to mitigate
its loss by
failing to attend to the repair of the bus with diligence and
failing to allocate an alternative bus on the route hitherto served by the damaged bus.
The 2nd defendant also contends in defence (duly supported by evidence) that if liability is found against the defendants, the 2nd
defendant's liability to indemnify the 1st defendant against liability to third parties (such as the plaintiff) was restricted by
the relevant insurance contract entered into between the 1st and 2nd defendants to K50,000 for third party loss of use, K1,000,000
for third party property damage and K5,000,000 for third party death or bodily injury. The plaintiff is not claiming, nor could it
do so, loss of dependency on behalf of its employee who died in the accident. There is, however, a claim for K281,983.00 paid by
the plaintiff to the estate of the deceased employee as worker's compensation.
McGregor on Damages 14th edition paragraph 213 has something to say about the concept of mitigation of damage thus:
"The extent of the damage resulting from a wrongful act, whether tort or breach of contract, can often be considerably lessened
by well-advised action on the part of the person wronged. In such circumstances the law requires him to take all reasonable steps
to mitigate the loss consequent on the defendant's wrong, and refuses to allow him damages in respect of any part of the loss which
is due to his neglect to take such steps. Even persons against whom wrongs have been committed are not entitled to sit back and suffer
loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss."
FACTS AND ANALYSIS
Before a review of case authority on the point is made, we would like to review
the facts as relevant to the issues at hand. The principal witness for the plaintiff in the relevant regard were Messrs Mwamadi Fazili
and Cuthbert Chinguwo. Mr Fazili said that the plaintiff obtained a quotation for repairs from PEW (Malawi) Limited on 29th May 2002,
within 4 days after the accident. The quotation from PEW (Malawi) Limited was produced in evidence as Exhibit P4. The quotation was
for a total of K180,000.00 and it outlines the various works which PEW (Malawi) Limited were to undertake on the plaintiff's damaged
bus. The quotation, importantly, also includes an item rendered "fit radiator to be supplied by you". From the evidence, it was clear that right from the outset PEW (Malawi) Limited indicated that the plaintiff would supply the radiator
necessary for the repairs to the bus.
Also noteworthy from the quotation is that not only would PEW (Malawi) Limited commence work on the bus as soon as they received
further instructions from the plaintiff to start repair, but also that delivery of the bus would be within "10 working days".
Mr Fazili told the court that the statement meant that the work on the bus would be completed and the bus delivered to the plaintiff
within 10 working days from the plaintiff's instructions to PEW to start the repair works.
Mr Fazili said that the bus had been delivered to PEW Limited for repairs on the
28th May 2002 and that when the quotation (EXP4) was issued on 29th May 2002, the bus had already been delivered to PEW. Mr Fazili
further said that the plaintiff gave PEW instructions on 30th May 2002 to undertake the repairs to the bus. Mr Fazili was given a
calendar for 2002 and asked to count off ten working days from the 30th May 2002. He did so and informed the court that ten working
days expired on the 12th June 2002.
Mr Fazili, though, informed the court that the bus was delivered back to the plaintiff
by PEW only on the 18th September 2002, evidence the delivery note produced by the plaintiff as exhibit P6. A delivery on the 18th
September instead of 12th June 2002 constitutes delay in delivery by 3 months and 6 days. The plaintiff reckons that such a delayed
delivery by PEW to them must be counted against the defendants. Why should the defendants be liable for loss incurred during those
3 months 6 days when such loss is directly attributable to what seems to be breach by PEW of contractual obligations owed to the
plaintiff or the plaintiff's own lack of diligence.
The defendants generally deny by their defence that they are liable to the plaintiff
in any way whatsoever. The burden of proof lies squarely on the plaintiff to prove fact and quantum of the loss claimed against the
defendants. If the intervening acts of PEW and the loss consequently occasioned to the plaintiff are not explained, the plaintiff
cannot have discharged that burden.
An inference can properly be drawn from the fact that PEW contracted themselves
to deliver the bus to the plaintiff within 10 working days, that it is unreasonable to lay up the bus for such damage for up to 117
days as the plaintiff claims. If the repairs could reasonably have been completed within 10 working days (and therefore the bus be
back in service within that time) is it acceptable that the plaintiff should seek to claim damages from the defendants for more than
those 10 working days, let alone for 117 days? Th plaintiff is guilty of failure to mitigate loss. The court cannot reasonably allow
the plaintiff to claim for such a lengthy unreasonable time.
Mr Fazili could not explain why there was such a delay, and therefore could not
explain whether there were circumstances which rendered such a lengthy delay reasonable. If such a long delay was unreasonable, it
bears no casual connection to the tortuous act of the 1st defendant's driver. The casual connection is broken by wrongful act of
a third party. That cannot be visited upon the defendants. The wrongful acts of PEW constitute a novus actus interveniens and breaks the chain of causation.
Some interesting thing that came out from the evidence of Mr Fazili as well. Mr
Fazili in his testimony expressed failure to fully explain the unreasonableness of the delayed delivery of the bus but suggested
that there were delays faced over the procurement of the radiator for the bus. The need to procure a radiator was made clear to the
plaintiff as early as the 29th May 2002 when PEW by the quotation (Exhibit P4), informed the plaintiff in writing that PEW would
"fit radiator to be supplied by [plaintiff]". The first time that the evidence shows the plaintiff attending to the procurement
of the radiator is a quotation from Bestobell dated 6th June 2002 – Exhibit P7. The only other document in that respect produced
by the plaintiff is an invoice from Bestobell produced in evidence as Exhibit P8. Interestingly, however, the Exhibit P8 is not only
an invoice for K41,675.11 but is also a delivery note and it is dated 30th October, 2002 after the bus had already been delivered
by PEW to the plaintiff. Strange because how is the radiator collected by the plaintiff from Bestobell only after the bus had been
delivered to the plaintiff with repairs been completed? Is Exhibit 8 really in respect of the radiator for the particular bus? The
amount of the invoice/delivery note suggests that it is because it is the same as that on the quotation (Exhibit P7), but surely
something simply does not add up.
Mr Fazili said he could not tell at all exactly when the radiator was taken delivery
of from Bestobell. Exhibit P8 suggests that took place on the 30th October 2002. The plaintiff was not able to explain these glaring
inconsistencies in evidence. All in all Mr Fazili could not really explain why 10 working days became 117 days. The plaintiff did
not go about procuring the repair of the bus with diligence. The earlier statement by Mr Fazili that delays were for non-availability
of the radiator from Bestobell was taken back when he later said actually Bestobell only repaired the same radiator, not supplied
a replacement. No question of Bestobell procuring the radiator then.
To all intents and purposes, for any loss or damage beyond the 10 working days,
the plaintiff should claim from PEW in respect of that apparent breach of contract. Mr Fazili insisted in cross-examination (and
this point was hammered home further in his re-examination) that PEW Limited understood the purpose to which the plaintiff put their
bus to. In fact, Mr Fazili explained that PEW actually constructed the bus for the plaintiff with a view that the plaintiff would
use the bus (and all the plaintiff's other buses) to generate income for themselves. He said for that reason the plaintiff did not
see the need to explain to PEW what the bus would be used for when the repairs were complete. He said the plaintiff was PEW's biggest
PEW are not a party to this action and no findings of fact can usefully be made
against them. However, just from the evidence of the plaintiff in this action through Mr Fazili, there is a good cause of action
by the plaintiff against PEW in damages for breach of contract on the time – tested principles of Hadley v Baxendale (1854) 9 Ex. 341. It is the plaintiff's right to choose who to sue but, with due respect, the decision to claim damages from the defendants beyond
the reasonable lay-up period of the 10 working days, is misguided. In any case, the plaintiff may still bring such action against
PEW, if they have not already done so.
The facts of PEW constitute a novus actus interveniens, in any case, apart from showing the plaintiff's failure to mitigate damage. The authorities are clear that when an effective intervening
act occurs it makes no difference that it has been done or perpetrated by the plaintiff himself or by a third party. "The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the
wrong done; and such therefore as may reasonably be supposed to have been in the view of the wrongdoer "said Lord Kinloch in Allan v Barlay (1863), 2 Macph (ct of Sess) 873 at 874. Lord Wright said in Lord v Pacific Steam Navigation Co Ltd, The Oropesa (1943) 1 ALL ER at page 215 that if, on the other hand, the action which resulted in the injury was "...........something unwarrantable, a new cause coming in disturbing the sequence of events, something can be described as either unreasonable
or extraneous or extrinsic [the chain of causation is broken]".
An illustration of the proposition that the plaintiff's own unreasonable intervening
action may effectually break the chain of causation is provided by the case McKew v Holland & Hannen & Cubits (Scotland) Ltd (1969) 3 ALL ER. 1621. The appellant has sustained injury in the course of his employment and the respondents (his employers) were decidedly liable. As
a result, on occasions, he unexpectedly lost control of his left leg which gave way beneath him. He would have recovered within a
week or two but for a second injury which he suffered. On leaving a flat, accompanied by his wife and child and brother in-law his
leg collapsed as he made to descend some steep stairs where there was no handrail (his wife and brother-in-law were at the time securing
the door). The appellant pushed his daughter aside to avoid pulling her down the stairs and himself tried to jump so that he would
land in a standing position rather than falling down the stairs. On landing he suffered a severe fracture of the ankle. On the question
whether the respondents were liable for the injuries caused by the second accident, the court held that the act of the appellant
in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance when his leg had
previously given way on occasions was unreasonable; accordingly the chain of causation was broken and the respondents were not liable
for his second injury. Alternatively, the court held, that the appellant's act of jumping did not amount to reasonable human conduct.
Very illuminating are the analyses of the law made by Lord Reid at pages 1622 and 1623 of that judgment and Lord Guest at page 1624.
Illustration of the effect on the chain of causation of a third party's intervening
act is provided by, among much other authority, the case of Hogan v Bentinck West Hartley Collenies (owners) Ltd (1949) 1 ALL ER 588. A workman, a miner suffered from a congenital defect viz, two top joints to his right thumb, in addition to his normal thumb. On
19th June 1946, he met with an accident at his work and fractured the false thumb. The thumb was treated by splinting, and on 19
August he returned to work. The thumb, however, continued to be painful and the workman was sent by his doctor to hospital where
it was discovered that the fracture had not united and an operation was advised and performed for the removal, not merely of the
false thumb, but also of the top joint of the normal thumb. On application by the workman for compensation on the ground of pain
the stump, the county court judge accepted the view of the medical witnesses that the operation was a proper one to cure the congenital
deformity but not to cure the pain consequential on the accident, and he refused compensation on the ground that the incapacity then
existing was due, not to the accident, but to the operation, which "appeared to have been ill-advised." On appeal eventually,
the House of Lords held that on the facts and the finding that the operation to remove the deformed as well as the normal thumb was
ill-advised, the appeal could not succeed and therefore the ill-advised surgery was a novus actus interveniens breaking the chain of causation. The employer was consequently not liable for the pain and suffering and loss of amenities resulting
from the wrongful operation.
The bottom line, is that in the present case the unreasonably delayed repair of
the bus occasioned by PEW and the plaintiff is a novus actus interveniens and the defendants cannot be held liable for the loss resulting therefrom. The loss suffered by the plaintiff beyond the 10 working
days is not the natural or direct result of the wrongful act of the 1st defendant's driver on the 25th May, 2002.
The evidence of Mr Chinguwo was interesting in several aspects. For one thing, Mr Chinguwo conceded that the figures of revenue reeled
off by him and thus claimed did not represent profit. He conceded that profit was revenue less all expenses. To that end he indicated
that the average daily revenue of K63,166.40 was grossed up and that it included expenses such as fuel costs, lubricants, maintenance
and repair costs. Also included will have been salaries drawn by the plaintiff's staff operating the bus. Income tax will also not
have been taken account.
The plaintiff cannot be entitled to be paid the gross sums because in order to make
any profit, which is properly the plaintiff's to claim, the plaintiff must necessarily spend money. A loss of profit by the plaintiff
would have been more appropriate. The plaintiff wrongly conceived of no need to prove the profit. The proper course is for an order
for damages representing lost profit for the 10 working days to be properly proved by an assessment of damages. A strict approach
would be to dismiss the entire claim on the basis of failure by the plaintiff to prove lost profit. However, from the evidence the
plaintiff did prove that it lost some profit during the 10 working days.
From the evidence of Mr Chinguwo, it is also difficult to accept that the plaintiff
conducted himself reasonably by failing or neglecting to deploy a different bus on the route during the 10 working days or any period,
once it is accepted that the particular route was a very lucrative one for the plaintiff. Even if the plaintiff did not exactly have
another double decker bus deployment of a single deck bus would have mitigated the loss by half. Sending a whole bus on a funeral
errand when there was no duty to do so when a less commercially important vehicle would have done, was unreasonable. It has been
held that "The fundamental basis is thus preliminary loss naturally flowing from the breach; but this first principle is qualified by a
second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars
him from claiming any part of the damage which is due to his neglect to take steps. In the words of James L.J. in Dunkirk Colliery Co. v Lever [(1878) 9 ch D. 20 at page 25], the person who has broken the contract is not to be exposed to additional cost by reason of the plaintiffs
not doing what they ought to have done as reasonable men, and the plaintiff not being under any obligation to do anything otherwise
than in the ordinary course of business" British Westinghouse Electric and Manufacturing Ltd v Underground Railways Co. of London Ltd (1912) Ac 673 at 689.
The reference to contract is only on the facts, but the general application of the
principle to tort is undoubted. The question what is reasonable for a person to do in mitigation of his damages is a question of
fact in each particular case. (see Payzu Ltd v Saunders (1919) 2 KB 581.
The plaintiff's claim for reimbursement of the sum of K281,933.80 paid to the estate of the employee who died in the accident is proper. I would also allow for funeral expenses such as payment for
embalming, coffin but not condolence money paid to the bereaved family. Whether or not the mechanic would have died from other cause,
the plaintiff would have paid this K2,000.00 as matter of social welfare gesture – why should they claim from the defendants?
For transport of the dead body and staff I would only allow for equivalent reasonable hire charges. On the basis of general award
of damages I would consider K10,000.00 to be a fair and reasonable award for transport costs. The allowance paid to member of staff of K150.00 who escorted the dead the body home is payable.
For loss of revenue I would consider a figure of K32,500.00 per day to be fair and
reasonable. Although the defendants would like to pin down the plaintiff to 10 days only, the court feels that a loss for 20 working
days is more realistic and reasonable taking into account all bureaucratic channels. The amount of K180,000.00 payable to PEW (Malawi) Limited has been proved. So too is the K41,675.11 for the radiator. Again K16,671.43 paid for extra panel beating and upholstery is payable to the plaintiff despite wrong quoting of the plaintiff's registration number.
The plaintiff is entitled to claim K2,000.00 for the police report as well as the K12,000.00 for assessors report. This is a normal routine procedure before claims are processed. I allow the plaintiff's claim as specifically
indicated in this judgment. The defendants are condemned in costs for these proceedings.
PRONOUNCED in open court this 26th day of August 2004 at Blantyre.