Malawo V Bulk Carriers Of Zambia Limited (1978) Z.R. 185 (S.C.)

Malawo V Bulk Carriers Tort-Negligence - Contributory negligence - Apportionment of blame-Causation and blame-worthiness both to be taken into account

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15TH JUNE, 1977 AND 12TH JUNE ,1978
(S.C.Z. JUDGMENT NO. 24 OF 1978)



Evidence - Witness - Credibility of witness - Findings of fact based on -   Whether appellate court will interfere.

Tort - Negligence - Contributory negligence - Apportionment of blame - Causation and blame-worthiness both to be taken into account.                 




A vehicle owned by the respondent (the plaintiff below) came into collision with certain cattle owned by the appellant (the defendant). The trial court made certain findings of fact adversely to the defendant based on the credibility of the witnesses. On the facts as found the trial court apportioned the blame as to 75 per cent on the defendant and as to 25 per cent on the plaintiff. The defendant advanced two grounds of appeal: first, that the trial judge erred in rejecting certain evidence given on behalf of the defendant, and second, that he erred in his apportionment of blame.



(i)      Where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that he has fallen into error.

          Kenmuir v Hattingh (1) followed.



(ii)    Whilst causation is a decisive factor in determining whether there should be a reduced amount payable to the plaintiff, the amount of the reduction depends not only on the causative potency of a particular factor but also on its blame-worthiness.

          Dictum of Denning, L.J., in Davies v Swan Motor Company Limited (2) adopted.

(iii)   On the facts as found the plaintiff was two-thirds blame-worthy and the defendant one-third.


Cases cited: 

(1)     Kenmuir v Hattingh  (1974) Z.R. 162.

(2)     Davies v Swan Motor Co. Ltd [1949] 1 All E.R. 620.


Legislation referred to:

Law Reform (Miscellaneous Provisions) Act, Cap. 74, s. 10 (1).

Law Reform (Contributory Negligence) Act, 1945 (England). 

Roads and Road Traffic Act, Cap. 766, s. 234 (4).


For the appellant:        H.K. Smallwood, Smallwood & Co.

For the respondent:     B.C. Mutate, Ellis & Co.      10





CHOMBA, J.S.: delivered the judgment of the court.


The appellant in this case was the defendant in an action arising from a motor traffic accident involving a motor vehicle belonging to the respondent (who was the plaintiff at the trial) and the appellant's cattle. For the sake of convenience I shall refer to the appellant as the defendant and the respondent as the plaintiff.


It was common cause that on the 10th April, 1974, a Kenworth truck and trailer belonging to the plaintiff and driven by the plaintiff's driver, Evaristo Mulando, was travelling along the Ndola/Kitwe road from Luanshya and at the same time a herd of forty-eight head of cattle was moving on that road in the opposite direction. The cattle were in the care and control of five drovers employed by the defendant. When the cattle were crossing a bridge at Chamboli Stream, a few kilometres from the heart of Kitwe, the plaintiffs driver was also driving down a slope towards the same bridge and in the result a collision occurred in which a number of animals in the herd were killed or so badly injured that they had to be destroyed; the Kenworth truck and trailer were forced off the road and overturned, resulting in irreparable damage to both. The plaintiff sued on the ground that the defendant was vicariously liable for the negligence of his servants in controlling the cattle while they were on the highway,alleging that they drove the cattle at night on the highway without lights to warn approaching traffic of their presence. While denying negligence the defendant counter-claimed, and alleged that the plaintiff's driver was the negligent party in that he mismanaged the plaintiff's motor vehicle while driving on the road.


The learned trial judge, after a full hearing of the evidence, found both parties to be at fault and apportioned their blame-worthiness: he




in found the defendant to have been 75 per cent blame-worthy and the plaintiff  25 per cent. Having calculated the composite damage suffered by both parties he then awarded each party damages according to his percentage of blame-worthiness.


The defendant's counsel submitted two grounds of appeal in this court and these were:

"1.     the learned Judge erred in rejecting the evidence of the Defendant and his witnesses as to whether or not the sun had set at the relevant time and in accepting that the Plaintiff''s tanker had left Luanshya at 1745        hours;

2.      the learned Judge erred in apportioning the blame for the collision between the tanker of the Plaintiff and cattle of the Defendant as to 75% that of the Defendant and 25% that of the Plaintiff."


Both these grounds were fully argued before us.


Regarding the first ground, this court held in Kenmuir v Hattingh (1) that where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that he has fallen into error. In the present case having seen and heard the witnesses the learned trial judge was fully entitled to disbelieve the defendant and those of his witnesses who said that the accident from which this case arose happened before sunset. Moreover, the defendant swore that when he got to the scene after the accident had occurred his cattle drovers had already left. He also averred that at the time of his arrival the sun had not yet set. His evidence on that point is however in direct conflict with that of the drover, Charles Mvula, who said not only that the accident happened after sunset but also that when he left the scene it was very dark. This evidence of Mvula reflected very adversely on the credibility of the defendant particularly on this point. In the light of this and having regard to all the evidence before the learned judge, we are not surprised that he found adversely against the defendant on this point. Moreover, this court did not have the advantage of seeing the witnesses to assess their credibility and since the finding that is impugned is one which was arrived at by the learned judge in consequence of assessing the witnesses' credibility this court feels bound to follow it. The first ground of appeal therefore fails.


As already shown, in this case there were counter-claims by the parties and in his judgment the learned judge in the court below apportioned the blame. The position in this case is analogous to that which obtains when a plaintiff sues in negligence and a defendant counter alleges that the plaintiff contributed to his own injury. This analogy is justified on the basis that the judge's decision in the present case amounted to a determination that each party's injury was occasioned partly by his or its own contributory negligence. In order to apportion damages in a case turning on contributory negligence a court would have to have recourse to the provisions of s. 10 sub-s. (1) of the Law Reform (Miscellaneous Provisions) Act, Cap. 74 of the laws. This section provides as follows, to the extent that it is relevant to the present case:




          "10. (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."


I note that this section is an exact reproduction of s. 1 sub-s. (1) of the English Law Reform (Contributory Negligence) Act 1945. Davies v Swan Motor company Limited (2) was a case which fell to be decided, as regards the question of apportionment of damages, under sub-s. (1) of the said Law Reform (Contributory Negligence) Act 1945. Denning, L.J., had the following to say pertinent to that question (see p. 632 thereof):


          "Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be 'just and equitable', having regard to the claimant's share in the responsibility for the damage. This involves a  consideration, not only of the causative potency of a particular factor but also of its blame-worthiness."

          This dictum is apt for the purpose of the present case and I adopt it.


Coming to the case before us, the learned trial judge was at pains to determine what was the major cause of the accident. Having reviewed the evidence and having made the finding that the accident occurred after sunset but at dusk, he proceeded to state, inter alia:


          "To drive cattle on a road after sunset without lights is not only dangerous, stupid and negligent, it is a criminal offence.

          There is no doubt that the major cause of this accident was this factor."


There was no fault that the learned judge found against the defendant other than the failure by his drovers to carry lights to warn approaching traffic of the presence of the cattle on the highway. (It is incidentally provided by s. 234 sub-s. (4) of the Roads and Road Traffic Act, Cap. 766, that a herd of ten or more cattle (or other animals as defined in that section) shall not be driven upon a road between sunset and sunrise unless a person carrying a white light precedes and another carrying a similar light follows such animals or cattle). Moreover the learned judge also found not only that the drover, Mvula, was flagging down traffic, but also that one car in fact stopped when so waved down. In my opinion this not only indicates that the plaintiff's driver could, if he had been alert, have stopped too, but additionally that the drovers did take a measure to mitigate their negligence of failing to carry lights.


Having determined that the major cause of the accident was the failure on the part of the defendant's drovers as already noted, the judge stated:




          "But it seems to me that the pIaintiff's driver in fact could have and I strongly feel did see the cattle and warning flag waved by Mvula.

          Whether he decided he would try to get past, or whether he was travelling too fast down the hill to be able to stop in time I know not: but that he is partially to blame for what happened I am also quite satisfied."


Earlier on in the judgment he made a firm finding that the driver of the plaintiff''s motor vehicle was ". . . travelling at well over 40 kilometres per hour generally and particularly too fast for the part of the road Where he was . . ." This finding was made in the light of evidence given by the plaintiff 's driver that when laden the Kenworth truck should be driven up to a speed of 25 miles per hour (or 40 kilometres per hour) and in this case the truck and trailer were fully loaded with acid. There was also evidence that the lights of the truck did not shine far enough when it was being driven on the material occasion. I consider it to be reckless for the driver to have driven at a speed well over 40 kilometres per hour Then his lights were defective. That in my judgment was yet another fault on his part.


The learned judge was of the view that the factor constituted by the major cause of the accident represented greater blame-worthiness. I think he was wrong. I consider that the plaintiff's driver's faults, namely driving too fast, driving a motor vehicle which had defective head lights and failing to take evasive action not only after seeing the cattle, but also after seeing the red warning flag being waved by Mvula, carried more blame-worthiness. I would consequently determine that each party's claim is partially successful meaning that  each party was to blame for the accident and consequential loss. Having regard to the plaintiff's share in the responsibility for that loss, I consider that a just and equitable apportionment should be that the plaintiff was two-thirds (or 66.66 per  30  cent) and the defendant one-third (or 33.33 per cent) blame-worth . Since the learned judge at the trial awarded to the plaintiff K8,000 as general damages, the defendant bears liability to pay to the plaintiff 33.33 per cent of that sum which mean she should pay K2,666.40, and as the judge found that the defendant suffered a total of K2,348 in general and special damages the plaintiff is liable to pay 66.66 per cent or K1,565.17 of that loss. Since the defendant has more to pay than the plaintiff's liability, what is due to him from the plaintiff will be offset from the defendant's liability which means that his net liability is to pay K1,101.23 to the plaintiff. I would therefore allow this appeal subject to the granting of reduced damages to the plaintiff in the sum of K1,101.23 and order that the order for costs made in the High Court should stand with costs of this appeal to the appellant.  





GARDNER, J.S.: I concur.




BRUCE-LYLE, J.S.: I also concur.


Appeal allowed

Law Student, The University of Zambia

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