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1. Breif Facts
1.1 The Plaintiff, Peter Chikaza, was involved in a road accident on 14th
March , 2012 at about 1400hrs. The driver of motor vehicle registration
number BN5349 was driving from the direction of R GAFFAR offices on
his way to work and on arrival at the TCM gate, he lost control of the
vehicle due to speeding and bumped into the Plaintiff who was walking
on the sidewalk of the road.
2. Issues
The main issues to be addressed are;
2.1 Whether the 1st Defendant drove with negligence.
2.2 Whether the Plaintiff contributed to the accident.
3. The Law
Whether the 1st Defendant drove with negligence
3.1 In the case of Kawala and others v Agricultural Development
and Marketing Corporation and another[1992] 15 MLR 180 (HC) it
was noted that to establish negligence it is necessary to establish 3
- a duty of care
- a breach of that duty
- and damage suffered by the victim which was caused as a result of
that breach
3.2 In deducing whether the 1st Defendant owed a duty of care to the
Plaintiff, it is necessary to turn to case law on the subject, which was
well summarised by Banda J (as he then was) in Banda v Agricultural
Development and Marketing Corporation and another Civil
Cause No. 273 of 1987 (unreported), at 3 as follows:
A driver of a motor vehicle owes a duty of care to other road users not
to cause damage to persons, vehicles and property of anyone on or

adjoining the road. He must use reasonable care which an ordinary

skillful driver would have exercised under all the circumstances. A
reasonable and skillful driver has been defined as one who avoids
excessive speed, keeps a good lookout, observes traffic signs and
signals. A pedestrian also owes a duty of care to other road users to
move with due care. Although a pedestrian is entitled to walk on the
carriage-way, he is only entitled to the exercise of reasonable care on
the part of drivers of motor vehicles.
3.3 Taking the above into consideration, it can indeed be said that the
1st Defendant owed a duty of care to the Plaintiff. Being a driver on a
public road, the 1st Defenfant should have had consideration for others
on the road, and those walking nearby on the sidewalks.
3.4 It can also be said that the 1st Defendant was in breach of the said
duty of care that was owed to those travelling on the roads and
sidewalks by driving recklessly. The opinion in the official police report
given by the officer who was at the scene was that the 1st Defendant
was driving inconsiderately, which caused him to lose control of the
vehicle. It would not be possible for control of the vehicle to be lost
unless the 1st Defendant were speeding, not paying attention, or
failing to obide by road rules in any other manner.
3.4. It now remains to consider whether the plaintiff has proved that he
suffered damage. This is a crucial question because negligence in only
actionable if actual damage is proved. There is no right of action for
nominal damages. See Hambrook v Stokes Bros [1925] 1 KB 141. In
other words, the Plaintiff must prove actual damage in order for him to
succeed in this case. In the case of the Plaintiff, as according to
medical reports, he sustained pelvic fracture, hip doslocation and
bleeding cuts. Thus, with this being established, it can be said that the
Plaintiff has suffered damage as a result of the breach of duty by the
1st Defendant.

Whether the Plaintiff contributed to the accident

3.5 In Khomba v Malawi Railways Ltd[1993] 16(1) MLR 205 (HC),

contributory negligence, in relation to accidents such as the case at
hand, was defined as a failure of the Plaintiff to take care for his or her

own safety.
3.6 All that is required in cases of contributory negligence is that the
plaintiff should have failed to take reasonable care for his own safety.
See Nance v British Columbia Electric Railway Co Ltd [1951] AC
601. In Jones v Livox Quarries Ltd [1952] 2 QB 608 at 615 Lord
Denning put it this way that:
a person is guilty of contributory negligence if he ought reasonably to
have foreseen that, if he did not act as a reasonable, prudent man, he
might be hurt himself; and in his reckonings he must take into account
the possibility of others being careless.
3.7 Taking the above into consideration, it can be said that the Plaintiff
in the current case at hand was walking where pedestrians were
supposed to be walking. The Plaintiff did not cross onto the road or
obstruct the path of the oncoming vehicle of the 1st Defendant. It was
the 1st defendant who diverted from the road and onto the pedestrian
sidewalk. It is difficult to see how the Defendants allege that the
Plaintiff is guilty of contributory negligence, given that the Plaintiff did
notthing do anything that would have caused a reasonable man to
foresee that he might hurt himself by doing what he was doing.
3.8 Now that it has been established that the Plaintiff cannot possibly
be guilty of contributory negligence, it is important to note that, as
according to Jussab v Mussa and another[1991] 14 MLR 116 (HC),
even if the Plaintiff was guilty of contributory negligence , such cannot
be a full defence to the negligence of the Defendant. At most, If
contributory negligence is found, the Plaintiffs claim for damages are
to be reduced proportionately. However, such need not be given any
thought, considering that the Plaintiff did not contribute in any way to
the accident.
4. Submission
4.1 It is the prayer of the Plaintiff that the court finds the Defendants
guilty of negligence, and that the Plaintiff did not contribute to the
accident. It is also prayed that the Plaintiff receive damages for pain
and suffering, loss of amenities, loss of earning capacity, and medical