IN THE HIGH COURT OF KENYA
AT MOMBASA
TREADSETTERS TYRES LTD …………………………………..APPELLANT
JOHN WEKESA WEPUKHULU ……………………………...RESPONDENT
J U D G M E N T
The Honourable Magistrate awarded a sum of Kshs.500,000/- as general damage to the plaintiff, now the Respondent for loss and damages suffered as a result of injuries sustained in a motor accident on 20th May, 2001 at Kibarani Area in Mombasa. The court also awarded Kshs.4,600/- being special damages which it said had been pleaded and proved.
The plaintiff in the said suit filed on 2nd April 2003, pleaded in the plaint dated 26th February 2003 that:-
- On or about the 2oth May 2001 the plaintiff was lawfully in the course of his employment with the Defendant when he was duly instructed by the Defendant, its agent, servant, and/or employee to transport tyres from Changamwe to the Mombasa City Executive (?) on the Defendant’s motor vehicle Registration No. KAG 545R, Isuzu Canter, when upon reaching Kibarani area, the said motor vehicle’s steering wheel broke causing the motor vehicle to suddenly veer off the road thereby colliding with an oncoming motor vehicle Registration No. KAL 456T Datsun Pick-up. In consequence, where the plaintiff sustained multiple injuries and has suffered loss and damage.
The Defendant averred that it was a term of the said employment contract between the plaint and/or it was the duty of the Defendant to take all reasonable precautions of the safety of the plaintiff not to expose him to a risk, injury or damage which the Defendant knew on ought to have known to maintain adequate tackle and appliances in regard to the said motor vehicle to enable the plaintiff to carry out his aforesaid duties of driving in safety, to ensure that the place where the plaintiff carried out his duties was safe and to provide and maintain a proper and safe system of working.
(a) Failure to properly maintain the said motor vehicle in good working condition.
(b) Failure to replace the defective steering wheel in time to avoid accident.
(d) Failure to take reasonable precautions for the safety of the plaintiff while in the course of his employment.
(f) Contravening the Traffic Code and rules.
The plaintiff pleaded that as a result of the accident he sustained serious injuries and has suffered loss and damages. The particulars of injuries as said to be :-
“PARTICULARS OF INJURIES”
The Particulars of Special damages were:-
2. Police Abstract……………………………..Shs. 100/-
On the basis of the foregoing the plaintiff claimed general damages, special damages and costs of the suit.
The Defendant denied the allegations in the plaint in respect of negligence and the injuries said to have been suffered. The Defendant pleaded that if ever the accident took place or occurred, then it was occasioned, caused and/or substantially contributed to by the carelessness; negligence and/or recklessness of the plaintiff. The Defendant set out the particulars of the alleged negligence of the Defendant who was himself the driver of the vehicle at the time of the accident.
Considering the fact that the plaintiff was the driver of the motor vehicle and in control of the same, the burden of proof was upon him to prove that steering wheel broke making him to lose control of the vehicle that it collided with another. In this case, his entire case was based on the question that the Defendant as his employer and owner of the vehicle gave a defective vehicle to drive in the course of his duties as a driver. It is to be noted that in his own evidence he said that he had driven the same vehicle for 8 years and that it was not serviced. He testified that the steering wheel had a problem and had informed his employer. He said that the motor vehicle was inspected and found to be defective.
In cross-examination the plaintiff stated that he had not sensed any defect on the motor vehicle. He stated that the plaintiff had been charged but did not know of the outcome. He said that he had driven the motor vehicle for 4 years and not 8 years. He admitted that he had not reported any defect. In re-examination he reiterated about the loose steering.
The Defendant did not call any witness and had its doctor’s medical report produced by consent.
Our law is long established and is certain on one issue that the person who alleges must prove the allegations. An allegation that the vehicle was defective to the extent that steering wheel broke is a very serious one. The burden of proof is on the maker. In this case the plaintiff was the driver of the vehicle. He had driven the vehicle for at least 4 years. There was no evidence in writing or otherwise that he had complained about a defective steering wheel.
The plaintiff was the driver of the motor vehicle. He had full charge and control of the vehicle at the time the accident took place. He did not enjoin the owner or driver of the other vehicle involved in accident, motor vehicle registration No. 456 Datsun Pick-up. There are no allegations that the said vehicle caused the accident or was to blame wholly or partially.
I do hold that the nature and extent of the alleged defect herein “breaking of a steering wheel” was of such magnitude that required specific, cogent and scientific proof that indeed such a major defective existed or took place as to place blame on the Appellant as owner of the motor vehicle.
“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferior and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”
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With respect, this is a misconception of the law. The trial magistrate had shifted the burden of proof to the Defendant in a manner not permitted by the law. He also admitted evidence which never existed or availed to the court.
A reporting of a defect by itself is not knowledge of the existence of a defect. In this case, the breaking of the steering wheel had to be proven.
“The party seeking to recover compensation for damage must make out the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leases the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed.”
The trial court ought not have found in favour of the plaintiff in respect of liability.
The Respondent has not dealt with this question in his submission. The plaint speaks for itself. In paragraph 9, it is pleaded as follows:-
There was no amendment of the plaint. As a result, the case was concluded without the particulars of the injuries being supplied. During the trial, parties produced respective medical reports and P3 Forms i.e. Medical Examination Report.
When the issue was raised at the trial, the trial magistrate accepted that no particulars were given in respect of the injuries. He however held:
“The pleadings, are however clear that the plaintiff sustained serious injuries and has suffered loss and damage. If the defendant was serious and if the matter was meant to be raised to determine the case, then the same ought to have been so done during the hearing to allow time for the plaintiff to respond. This is a court of equity and he who comes before it must do equity.”
I have carefully considered the above. First however much, the courts are Courts of Equity, there are certain procedural law that cannot be overridden by principles of equity. Each party is bound by his pleadings. In cases of tortuous claims based on negligence, injuries and special damages must be pleaded. They cannot be imagined or inferred. The court’s road-map are the pleadings on record. If a party alleges he suffered an injury, he must particularize the same so that the Defendant can specifically respond to the claim. One must plead the nature and extent of injuries suffers. This is a mandatory requirement of the law. His omission cannot be cured by principle of equity or the principles envisaged in Section 1A, 1B and 3A of the Civil Procedure Rules.
“… Once the existence of a duty of care has been established, which has been followed by a breach of that duty, the final element to be proved of these essential components of actionable negligence has that the consequential damage has been suffered.’
Order VI of the Civil Procedure Rules Rule 3 provides:-
I do hold that the particulars of injuries in a personal injury claim are material facts if not crucial. It is the core of the case and gives rise to the value of amount of the claim. It is a matter that must be in the claim as a matter of necessity.
Applying the Overriding Objectives of the Civil Procedure Act as envisaged in the Civil Procedure Act Cap 21 Sections 1A, 1B, and 3A, Act in this court attempted to find a way round the issue to ensure that there is a just and fair determination of the appeal and considering that the Appellant had been successful and was an employee of the Respondent.
The High Court of Australia in DARE –V- PULHAM (1982) 148, C.L.R. 658 at 664 described the functions of pleadings:-
Relief must be founded on the pleadings except in very exceptional cases where parties ignore the pleadings and proceed on issues mutually chosen at the trial.
As a result of the foregoing the suit would still have been unsustainable at the close of the trial on this basis with regard to the substantive claim.
Dated and delivered at Mombasa this 24th day of November 2010.
M. K. IBRAHIM
J U D G E