IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE No. 877 OF 1998

BETWEEN

ALIAS
KHAKI BANDA……….…………………………...PLAINTIFF

-AND-

F.B.
CHAKHUMBIRA……….…………………………..DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Chipao
for the plaintiff

Court
Clerk

ORDER
ON ASSESSMENT OF DAMAGES

The
plaintiff’s action was for damages for pain and suffering and loss
of amenities. The issue of liability was already settled
by way of
default judgment, which was granted by the court on the 26^th
day of June 2000.

The
plaintiff’s claim comes from personal injuries, which he sustained
after he was hit by a wheel of a truck, which broke his
leg. It was
the plaintiff’s evidence; the wheel of the truck hit him after it
had come off a trailer registration number NU 456,
which at the time
was being drawn by a truck registration number NU 802. When the
accident occurred, the plaintiff was riding his
bicycle along the
Lilongwe/Mchinji road, towards Namitete and the truck was overtaking
him. The truck belonged to the defendant,
but at the time of the
accident was being driven by his driver, Mr. Edward Zimba.

According
to the police report, which the plaintiff tendered in evidence, the
wheel came off the trailer after the wheel nuts were
severed. It was
thus the conclusion of the police that the accident was caused by a
mechanical fault and they proceeded to close
their file on their
part. Having noted this conclusion, I did ask counsel for the
plaintiff to make a submission on this point.
This was on the view
that if the accident was caused by a mechanical fault, the element of
negligence becomes negated.

In
his submission, counsel asked the court to infer negligence from the
circumstances, in other words, that the court should rely
on the
doctrine of res
ipsa loquitor.
In this regard, counsel for the plaintiff argued that since the
vehicle was within the sole control of the defendant’s driver,
it
would be fair to attribute to the defendant responsibility of what
had happened as, according to him, the defendant had a duty
of care
to make sure that the vehicle was roadworthy.

at
this point, I did consider the question as to whether in the
circumstances, the plaintiff can rely on the doctrine of res
ipsa loquitor because
I do believe that this question has some significance in this matter.
This is in the sense that the law is clear in that
where the cause of
the accident is known the doctrine of res
ipsa loquitor
has no application and that it becomes the duty of the plaintiff to
prove, whether, upon the facts of the case negligence on the
part of
the defendant is proved or not. (See Phekani
v Automotive Products Ltd
[1996] MLR 23). In this case, it was established that the accident
was caused when the wheel nuts were severed. Having this fact

established, the question ceased to be one where the facts spoke for
themselves. Rather, it fell on the plaintiff to prove that
the defect
in the wheel nuts could have been discovered by the due diligence on
the part of the defendant. If not, it would have
been up to the
plaintiff to show to the court that the severing of the nuts would
not have occurred without showing any visible
external marks, which a
competent driver would be able to recognize. Looking at the manner in
which this case was presented, this
was not clearly done.

Of
course, for the most part it could be explained that the plaintiff
failed to prove that the defendant did not show any due diligence

because that this matter never went to trial and that the plaintiff
would have had no opportunity to lead any evidence to that
effect.
Indeed a further point to consider would be the fact that there is a
default judgment on this matter, which, for the moment,
binds this
court and therefore obliges me to assess and award damages to the
plaintiff. However, as a court I would be failing
in my duty if I do
not recognize the reality that a default judgment does not consider
the merits of the case and that it can be
set aside, along with any
award of damages I am going to make. Further I am also inclined to
consider the possibility that if the
default judgment is set aside
and this matter were to go for trial, the plaintiff’s action may
not succeed and he would not be
entitled to any damages.

In
view of this then and in order to avoid a situation where the
plaintiff is awarded a sum that he would not be in a position to

refund should his action fail, I am only inclined to award him, at
this point of the case, nominal damages of K5 000 and costs
of this
action.

Made
in Chambers this………day of…………………………...2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR