Headnote
The Respondent was involved in a road traffic accident after his car plunged into a trench that was dug by the Appellant. The Respondent and his passengers sustained serious injuries and suffered permanent disability. Additionally, the Respondent’s vehicle was damaged beyond repair. The Respondent accordingly claimed the sum of K854 960 as refund for medical and travel costs to India, K 110 000 as compensation to replace the damaged motor vehicle, K 360 000 as compensation for permanent disability as well as costs. On the balance of probabilities, the Respondent proved his case and it was found that the Appellant had been negligent and judgment was entered for the Respondent. The matter was referred for assessment to the Deputy Registrar for the assessment of medical bills and travel costs. The Court also awarded the Respondent special damages in the sum of K 110 000 for the replacement of motor vehicle.
The Appellant appealed being dissatisfied with the lower Court’s judgment.
Held:
1. There were no warning signs and the failure by the Appellant to erect the same amounted to a breach of a duty of care.
2. The absence of expert evidence on the estimated speed of the Respondent’s motor vehicle means that the trial court cannot competently come to a conclusion about the speed of a vehicle. The Appellant contended that there was sufficient evidence on record to satisfy the trial judge that the Respondent travelled at high speed and contributed to the accident. We do not find this evidence on record. The case of Litana v Chimba and Another (1987) ZMSC 21 approved.
3. The Appellant raised an argument that the Respondent ought to be held liable in contributory negligence, however, it was not pleaded and was only raised for the first time by the Appellant’s counsel in submissions.
Appeal dismissed.
