Ziporrah Nangila v Edoret Expess Limited, David Kabaibai Ruto & Ababa Chanasa Atafara (Civil Suit 403 of 2012) [2016] KEHC 3804 (KLR) (21 July 2016) (Judgment)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NUMBER 403 OF 2012

ZIPORRAH NANGILA....................................................................PLAINTIFF  

VERSUS

1.  EDORET EXPESS LIMITED.............................................1ST DEFENDANT

2. DAVID KABAIBAI RUTO….............................................2ND  DEFENDANT

3.  ABABA CHANASA ATAFARA.........................................3RD DEFENDANT

JUDGMENT

1. On the  2nd   January, 2012  the  plaintiff  Zipporah  Nangila  Lusweti  was seriously injured in a road traffic accident along Naivasha – Nakuru road while a fare paying passenger in motor vehicle   Registration Number KBP 925Q that collided with motor vehicle   Registration Number KAU 130V a Scania  Bus, the property  of the first  defendant, being  driven by David Kibaibai Ruto, the second defendant as the authorised driver and agent of the first defendant.

The plaintiff blames the driver of the said bus for negligence and holds the first defendant vicariously liable for the drivers negligence.

Particulars  of negligence  are itemised  in the Amended plaint dated 10th February 2015. She seeks compensation in both general and special damages.

2. In  their statement  to Amended   Defence dated the 27th   May 2015, the defendants denied being liable   in negligence and damages and the ownership  of the said vehicle  and in turn  blamed  the driver of motor vehicle registration No. KBP 925Q for negligence.

At this  point it is  important to state  that the owner and driver of motor vehicle Registration No. 925Q are not parties to this suit.

3. The plaintiff recorded a statement on the 8th  May 2012 on the occurrence of the accident. That statement was adopted by the court as her evidence. In her oral evidence before the court, she testified that she boarded A Mini bus registration Number KBP 925Q from Eldoret going to Nairobi on the 2nd  January 2012 and sat at the front cabin next to the driver so she could see in front.  She testified  that she saw a bus registration number KAU 130V coming from the opposite direction overtaking several vehicles and then suddenly  it came onto the path of motor  vehicle  registration KBP 925Q at a high speed, that the driver of motor vehicle KBP 925Q tried to avert the collision but could not go off the road as there was a ditch at the verge the road.  It was her testimony that the two vehicles collided on the left lane of the road,  the correct lane of motor vehicle KBP 925Q.  It was her further testimony that she was trapped for four hours in the minibus and good Samaritans used other buses to pull her and the driver who was then dead from the minibus.   She was taken to Naivasha district hospital for treatment and later transferred to Nairobi Hospital  on the same day where she was admitted upto the 23rd  March 2012.

She produced the documents as exhibits

• Hospital discharge summaries
• Hospital treatment notes
• Payment  receipts  of  medical  costs  from  various  hospitals  in Nairobi

She stated that  she has not  recovered and walks  with  difficulty  using crutches and depends on other people for care.  A full medical report was later produced by her doctor.  I shall come to the injuries and complaints at a later stage.

The plaintiff She blamed the accident on negligence of the driver of the Bus Registration  Number KAU 130V whom she stated was driving carelessly, overtaking dangerously and on high speed in the circumstances.

4. A  police  officer  from  Naivasha traffic  police  base, PC.  Alice  Wangare testified that she was not the investigating  officer but had with  her the investigation file over the accident, and the covering  report.  The findings of the investigation  was that  motor  vehicle  Registration  No. KAU 130V Scania bus was to blame for the accident.  She produced sketch maps that showed the point of impact having been on the left lane of the road. It was her evidence that the driver of motor vehicle Registration No. KAU 130V was charged and produced the charge sheet and the police  file  No. IAR Fatal  1  of  2012  (by  consent of  both  counsel).   The  driver  (second defendant)  was charged with  the offence of  causing death by careless driving to which, on his own plea of quilt was  fined Kshs.50,000/=.  The police officer confirmed that the plaintiff was a victim of the accident.

The defendants did not cross­examine the police officer, nor did they call any evidence.

5.  Liability

Relying  on evidence  and documents  produced by the plaintiff and the police officer, the plaintiff by her Advocate Mrs. Njeri Onyango submitted that the plaintiff had proved her case on a balance of probability that the driver of motor vehicle registration number KAU 130V was negligent and therefore liable in damages. That, there having been no evidence by the defendants  to contravert  the plaintiffs and her witnesses  evidence,  the court  ought to make a finding that the driver, and by his admission of guilt in the  traffic  case and the conviction,  and sentence to a fine  of Kshs.50,000/=  on the offence of causing death by dangerous driving,the court ought to find in the plaintiff's favour.

The plaintiff in proof of ownership of the bus produced Records from the Registrar of motor vehicles that settled the matter.

6. The  defendant  through  her  advocate Ms.  Akaka  submitted  that  the plaintiff's failure to prove negligence  against the driver of motor vehicle Registration Number KAU 130V, by failing to enjoin  and the driver of the vehicle she alleged to have been a passenger in. It was her submission that the said vehicle registration number KBP 925Q was partly to blame for the accident.  It was her submission that failure to enjoin the driver and owner of the vehicle as third parties did not automatically attribute full liability on the defendants, and so urged the court to restrict the defendants liability to the extent of its blame worthiness, that she assessed as not more than 50%.

7. Analysis of evidence and findings

The court as the first appellate court is under a legal duty to evaluate and consider the evidence tendered before it to arrive at its findings and conclusions therefrom.

There is no dispute that the plaintiff was injured in the accident, and that she was a passenger in motor vehicle registration no KAU 130V, and that its driver, the second defendant pleaded guilty to a charges of careless driving and causing death by dangerous driving.

The defendants did not call any evidence and therefore the plaintiffs evidence  that the defendant's bus was being  driven carelessly  and at an excessive speed in the circumstances was not controverted.  The defendant failed to call its driver to testify.  That could only be interpreted to mean that his  evidence  was unfavourable  to its  case ­Simba Commodities Ltd vs­ Citibank N.A(2013) e KLR where such observations were made. It is on record that the police investigations were not challenged.   The sketch plans produced as exhibits too were not challenged.  The point of impact of the two vehicles after the accident was on the  left lane, the correct lane of motor vehicle registration Number KBP 925Q. The Defendant's vehicle had veered from its lane and on to the path of the said vehicle.

8. The defendants defence therefore raised mere allegations.  Section  107 and 108 of the Evidence Act is clear that he who asserts must prove by evidence. In Anter Singh Bahra and Another ­vs­ Raju Geridji HCCC No 545  of 1998,  the Judge faced with  similar circumstances  held  that the defendant's claim must fail as it was unsubstantiated by any evidence.  See also D.T. Dobie and &Co (K)  Ltd ­vs­  Wanyuonyi Wafula Chebukati (2014) e KLR quoting Lord Denning, in Miller  ­vs­ Minister of Pensions(1947) had this to say on burden of proof:

“That  the  degree is  well settled.  It must carry  a reasonable degree of probability, but not so high as is required in a criminal case.  If the evidence is such that the tribunal can say:

“we think it more probable than not,” the burden is discharged, if the probabilities are equal, it is not.”

9. The evidence tendered before the court by the plaintiff and her witnesses coupled with the documents produced are sufficient material to prove that the plaintiff has discharged the burden of proof.  The court finds that the first  defendant is  vicariously  liable  for  the negligence  of  its  driver the second defendant, and for that, the defendants are jointly and severally liable  to compensate  the plaintiff for the injuries  and loss  she sustained, and continues to sustain.

10. Quantum of damages

In the Amended plaint dated the 10th  February 2015, the plaintiff itemised the injuries  she sustained  together with  particulars  of special  damages towards medical expenses in the sum of Kshs.5,216,357/= as at the date of filing the amended plaint.  She pleaded that since then, she has incurred further costs on treatment and pleads future medical expenses and costs as she has to have 24 hours nursing care for the rest of her life.

11. Dr. (Prof) John E.O Atinga, a Consultant Orthopaedic Surgeon prepared a medical  report for the the plaintiff.  It is  dated 7th  September  2012.   He produced the same as PExt I.   The plaintiffs injuries were enumerated as follows:

• Bilateral leg injuries
• right wrist injury
• Fracture dislocation of the right ankle
• comminuted compound fracture of the distal and fibular
• Fracture of the left distal and tibia and fibular
• Extensive skin loss with bones exposed in the right tibia. He made the following observations:

She had emergency surgical  toilet, debridement  of the right ankle  and external fixation used to stabilise the foot on the ankle.  The leg was cold with  no distal pulses.   Minimal fixation of the above fragments with interfragmentory screw.

The right leg had no viable circulation, but an option to wait for demarcation in case amputation was necessary. Left tibia was treated with minimal contact locking plating system.   The wrist was treated by manipulation and cast application.

The doctor went on to state that the plaintiff needed prolonged wound care with  multiple surgical  toilets  and subsequent  skin grafting by a plastic surgeon, Dr. Khaiga.  She has  had  a  protracted  course of antibiotic treatment to control infection both in the pin tracts and the above. The left tibia has progressed well with the implants. The right wrist fracture was now out of the cast. She had to use a wheel­ chair until satisfactory union of the right radius to enable use of crutches on the left lower limb. Currently, her right ankle and tibia have extensive skin grafts both on the planer surface and dorsan of the foot which is in equnius malposition.  The left tibia is united and will need plate removal.

Dr. Ating'as opinion was stated as follows:

The sustained  bilateral severe leg  injuries  with  the right   ankle  and foot permanently stiff and acts like a stump which may not   function even in modified shoes. She has a plate in her left tibia which will require removal in due course.

The right wrist is painful in volar malunion.  Total functional loss with a lifeless right foot and ankle is 70%.  She will need surgery to  remove the implants at a cost of Kshs.300,000/=. She will need special shoes on the right leg permanently at a cost of up to Kshs.15,000/= per shoes whose life may be three years at maximum.

She will need major operation to fuse the right ankle estimated at Kshs.600,000/= including hospital stay.  She will permanently limp because of her permanent deformity  and may need o use a cane all the time.

The said doctor was paid a sum of Kshs.10,000/= and receipt produced for Kshs.40,000/=  being  his  court  attendance and balance  was to  be paid (PExt.2).

12. Upon cross examination, Dr. Atinga stated that the plaintiff's left leg was cosmetic, that it was not functional, and that it cannot move.  At the time of testifying, she was walking in crutches.

On future medical expenses, he explained that it varies on the treatment and the hospital.

He stated that the injuries have affected her income as a business lady as mobility is limited.

13. PW2 was Dr. Wafula Khamala is  also an Orthopaedic  surgeon at Aga Khan hospital, Nairobi. He stated that he treated the plaintiff in 2014 after she developed complications, with puss discharge from her right foot.  He produced his medical report dated 8th  July 2015 as PExt .4.  It is the most recent report.  The report shows that the plaintiff has

•  Disability on the right leg and right hand that is not mobile,

• Left leg not functional

• Roes cannot touch the ground

• will require corrective surgery at an estimate of up to Kshs.1,000,000/=

• will require aids to walk

• Experiences swelling and heaviness in the right foot on walking half a kilometer.

• Experiences morning stiffness and altered sensation in the right foot

• Left leg had healed surgical scars – with near normal range of motion of the ankle and foot

• Right wrist joint has a deformity with prominence of the ulna head

• Distal   radioulna    joint    of    the   writs   is   dislocated   and   twisted, movements cannot occur

• Cannot  perform  most  daily  living  activities  involving  squeezing, twisting and turning the right wrist.

The doctors opinion was that:

• she will require  further corrective  surgery and specialised  shoes for the right leg and at an estimate of Kshs.1,000,000/=
• She will need specialised  shoes  for  the rest of her life, each pair estimated to cost Kshs.30,000/= and replaced annually.
• Corrective  osteotomy of  the  right  wrist  and  rehabilitation  at  an estimated cost of Kshs.600,000/=.
• She will remain on long term limping and use of a cane or crutch for the rest of her life.

The plaintiff produced as exhibits  all the discharge  summaries  from the various hospitals that the above doctors used in the preparation of the two medical reports ­ (PExt No 6A & 6B).

14. The Defendant's Doctors report was prepared by Dr. Leah Wainaina. It is dated 24th November 2015. It was admitted by consent of the parties DExt I.

The court has considered the injuries sustained by the plaintiff.

It will proceed to assess damages under the following subheads

(1)     Damages for pain and suffering

(2)     Damages for loss of earnings and loss of earnings capacity

(3)     Nursing care

(4)     Future cost of treatment

(5)     Special damages

15. Damages for pain and suffering.

The defendant, citing the cases Daniel Kosgei Ngelewei ­vs­ Catholic Trustee Registered Diocese of Eldoret and Another, (2013) e KLR and Lilian Gakethi Mworia ­vs­ Stanley Mwithimbu M'Ithiri  (2010) e KLR proposed a sum of Kshs. 1,500,000/=.

In the Daniel Kosgei case above, the injuries sustained were amputation of the left  lower limb above the knee with  soft tissue  injuries. The court awarded Kshs.2,100,000/= in June 2013.

In  the  Lilian  Gakethi  Case  (Supra),  for  compound  fractures  of  the tibia/fibular, and to the left humerus and compressed fractures of the T3 with transaction of the spinal cord, paralysis of the upper and lower limbs among other injuries, the court awarded Kshs.2,000,000/= in June 2010. For the plaintiff, a sum of Kshs.4,000,000/= was proposed. Counsel for the plaintiff cited numerous authorities in support. I  have considered them.

In Regina Wilson ­vs­ Stephen M. Gichuchi & Others,  Hccc No 728 of Kshs.2,500,000/= for pain and suffering. The plaintiff had sustained multiple fractures of the right side 3rd  – 6th  ribs, communited fracture soft right radious  bone, fracture of the femur involving the neck, fractures  of the right tibia/fibula bones of same leg and soft tissue injuries.

In Edward Mzamili Katana ­vs­ CMC Motor Group – (2006) e KLR the court awarded Kshs.2,000,000/= in May 2006. The injuries sustained by the plaintiff were head injury leading to concussion, cut wound and bruises to the scalp, fracture of the left scapula, compound fracture dislocation of the left elbow, compound fracture of the 5th  – 7th  ribs and fracture of the left femur upper 1/3 shaft.

In Almed Mohammed Adam ­vs­ Jimmy Tomino and 2 Others (2006) e KLR for  injuries  – amputation  of  the  left  lower  limb  below  the  knee multiple fractures of the farsal bones of the right foot and burns, compound fracture of right malleoulus and dislocation of the right ankle joint and stiff knees of ankle  joint, a sum of Kshs.1, 900,000/=  was awarded in 2006. Injuries in the above authorities were more serious as they involved amputations of the limbs and multiple fractures.

I have considered the plaintiffs injuries, the degree of incapacitation assessed at 70%, and the three doctors opinions as  as contained in their separate reports.   There is  no doubt that  the plaintiff has suffered and experienced a lot of pain, having to undergo 28 operations.   The injuries sustained by the plaintiffs in the cases tendered by both the plaintiff and the defendant referred to above are equally serious, and damages by all the Learned Judges were in the region of Kshs.1,900,000/= to Kshs.2,500,000/= for pain and suffering.

I have considered the seriousness  of the plaintiffs  injuries. I have also considered inflation incident. I find a sum of Kshs.2,400,000/= damages for pain and suffering reasonable.  I award the same.

16. Loss of earnings and loss of earning capacity.

The plaintiff testified that before the accident she was operating a business with  an income of Kshs.100,000/= per month. She produced bank statements to show the business financial transactions that came to a stand still since the accident in January 2012.  The plaintiff upon review of the bank statement submits  that  an average income  of  Kshs.50,000/=  per month is  reasonable.   The plaintiff is  51 years old and as indicated  the medical reports, will not engage in any gainful venture for the rest of her life.

She claims loss of earning capacity.   The plaintiff proposed a multiplier of 10 years.

The defendants on their part submits that no proof of business was made as no certificate of registration of a business or business entity was provided.  On the bank statements, it was submitted,  that  they did not support  a business. It  is  further  submitted that even if there was an on going  business, in her own  testimony  she testified  that  she had hired workers to conduct the alleged transport business and therefore her current in ability and incapacitation will not affect the business negatively.

17. A claim for loss of earning capacity is a general damage. It can be awarded as part of general damages for pain and suffering, and can be awarded to compensate the party  for the risk that he may never get employment if he was not employed, or may lose the same if he was employed.  As concerns a party who is in business, the incapacitation from the injuries may cause the party not to comfortably manage the business he was engaged in, or even to venture into other businesses.

18. For the plaintiff, it is not disputed that she will never be able to engage in any income generating venture on her own. As submitted by the defendant, no documentary evidence was tendered to confirm what business the plaintiff was engaged in prior to the accident.  That as it may, there was evidence that the plaintiff  operated a Bank A/C at K­Rep Bank Ltd before and after the accident.  This account cannot be said to have been an active account. The transactions are very minimal.  She had an account at Equity Bank at Bungoma. Between March 2011 and January 2012 when she was injured, there is evidence of some deposits as well as withdrawals.  It is in her personal names.  There are no indications  from where the deposits were made from.  What is clear is that there were some transactions upto December 2011.  The plaintiff did not provide statements for the year 2012 and thereafter.

19. In her KCB account, still in her personal names, there are minimal transactions between September 2011 and April 2013.

From these statements, the court cannot reasonably come to a conclusion that before the accident,  the plaintiff had a flourishing business with  an average income of Kshs.50,000/= as the plaintiff submits. No evidence was tendered to support that submission.

In High Court Civil Case No 287 of 2007 Simon Ano Mua ­vs­ Kioga Mukwaro ­vs­ Kioga Mukwaro (2013) e KLR, it  was held  that loss  of earning  capacity  occurs where as a result  of the   injury, the plaintiff's chances in the future of any work in the labour market is lessessed whereas loss of future earning capacity is an award for real and assesable loss, proved by evidence.

20. While assessing a claim for damages for loss of earning capacity, factors as age and qualifications of the claimant, his disabilities and previous abilities must be taken into account.

The plaintiff herein  did not lead  any evidence  as to her professional or academic qualifications.   She was 51 years when  she testified.  She could have worked for a period  of not less  than 10 years to reach the official retirement age of 60 though in informal sector, it could be more than 70 years.  Her income was not evident from the evidence tendered, or from the bank statements. Doing the best I can, I find that as an energetic and healthy woman and taking into account all vicissitudes  of life, she could have gainfully worked for eight years. That is the multiplier this court will adopt, against an income of Kshs.15,000/= per month as a businesslady. The court will therefore award the plaintiff damages for loss  of earning capacity made up as follows:

15,000/=  X 12 X 8  =        Kshs.1,440,000/=

21. Nursing Care

The plaintiff's incapacitation was assessed at 70% with that incapacitation, the plaintiff will require assistance in her daily activities.  She will have to use crutches  to  walk  but  will not  manage her household  and personal needs. She will require assistance in her day to day needs.

22. The defendants  Doctor, Leah Wainaina was silent  on the percentage of physical disability resulting from the injuries. The plaintiff's doctors did not specifically recommend a nurse but considering the injuries and disability, it is the court's considered opinion that the plaintiff will require a second hand to  assist her in her daily chores  as her left  hand and   legs  are disfunctional and will be so for the rest of her life.  I shall allow the claim that  will be worked out for  a house help  for  the next eight  years  at a conservative salary of Kshs.10,000/= per month. This is informed by the current wages for house helps.   It will no doubt rise in due course. That works up to Kshs.10,000 X 8 X 12  = 960,000/=

23. Future cost of treatment.

It is the defendants submission that a claim for future cost of    treatment is  futuristic and ought not be granted, as it cannot be proved until the treatment is given, and further, being a special damage claim, until proven, it ought be denied.

The plaintiff however submits  that  she will require  future  treatment to correct the deformities and remove the  implants. The doctors gave estimates of the costs.

In Sosphinaf Company Ltd & Another ­vs­ Daniel Ng'ang'a Civil Appeal No 315 of 2001, the Court of Appeal held that a claim for future medical treatment was part of general damages and did not need to be specifically pleaded.

Also in the case Simon Taveta ­vs­ Mercy Mutitu Njeru (2014) e KLR the court of appeal, referred to the case of Kenya Bus Ltd ­vs­ Gituma (2004) EA 91 and held held:

“And as regards future medication (physiotherapy), the law is well established that although an award of damages meet the cost thereof is made under the rubric of general damages,the  need for future medicare is itself special damage  and is  a fact  that  must be pleaded.  If evidence thereon is  to led and the  court  is  to make  an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as  arising  naturally  from the  infringement of a  person's legal rights should be pleaded.”

24. As a special damage within  a claim  for general damages, the court went ahead to state that it ought to be pleaded and proved – See Tracom Ltd & Another ­vs­ Hassan  Mohamed Aden (2009) e KLR.

It is not in dispute that the plaintiff in this case has proved the need for future medical treatment.

Indeed the two Doctors, Prof. Atinga and Dr. Wafula Khamala recommended future surgeries  to the plaintiff to remove the implants  as well as special shoes, and a major operations to fuse the right ankle.

I do not doubt the expertise and competence of these very learned Doctors.

They estimated the cost of:

(a) Corrective surgery at Kshs.1,000,000/=

(b) Special shoes for the rest of her life at a cost of  Kshs.30,000/= to be  replaced annually.

(c) Corrective osteotomy of right wrist and rehabilitation at a cost of Kshs.600,000/=.

Learned Judges of Appeal in Civil Appeal No 133 of 2005  Paul N. W. Njoroge ­vs­ Abdul Sabini Sabonyo (2015) e KLR  faced with  a similar situation had this to say:

“In this part of the world it is normally considered wise to remove metal after the fracture has  healed even if it is not  causing  any trouble.  However, this  opinion is  not shared by all doctors ­­­­­­­­­­­”

They held that, subject to proper professional assessment and counselling, future medical surgery was not ruled out and that it was only fair that a reasonable sum be awarded for the eventuality. They proceeded to award the claim for future medical costs. That was on the 27th  February 2015.

25. In  the  present case, I  am  satisfied  that  the  plaintiff  requires  future treatment and surgeries as recommended  by the doctors.

As stated above, the doctors gave estimate cost of the surgeries and other medical procedures and equipment.

Upon due consideration, the court shall allow the claim for future cost of treatment as follows:

(a) Cost of removal of implants    -  ­Kshs.200,000/=

(b) Cost of specialised shoes @ Kshs.10,000(every year) for 8 years­  Kshs.80,000/=

(c)    Further surgeries                 - Kshs.700,000/=

The above awards  are informed by the fact that  the doctors  gave only estimates of the future cost of treatment.

In this subhead, the total award is Kshs.980,000/=

26. Special damages

A sum of Kshs.4,940,357/= is pleaded in the  in the amended plaint. A bundle of receipts from various hospitals, health providers were produced, including taxi services representing a sum of Kshs.2,751,579/=

It is submitted that the balance was paid through the plaintiffs. Insurance and National Hospital Insurance Fund(NHIF) Deductions. This fact is acknowledged by the defendant.  I shall allow the sum of Kshs.2,751,579 as a special damages, and duly proved.