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Litana v Chimba & Another (S.C.Z. Judgment 16 of 1987)  ZMSC 21 (01 July 1987);
ELIJAH BOB LITANA v BERNARD CHIMBA AND THE ATTORNEY-GENERAL (1987) Z.R. 26 (S.C.)
|SUPREME COURTNGULUBE, D.C.J., GARDNER, J.S., AND SAKALA, JJ.S.
2ND JULY,1987(S.C.Z. JUDGMENT NO.16 OF 1987)
|Evidence - Expert evidence - Desirability of - Speed of Vehicle - Whether negligent.
Tort - Negligence - Speed of vehicle - Expert evidence - Desirability of.
Damages - Law Reform (Miscellaneous Provisions) Act - Loss of expectation of life.
|The plaintiff appealed against a judgment of the High Court concerning a claim for damages arising out of a motor accident in which two young children of the appellant aged one and a half and three and a half were killed. The trial Commissioner found that the appellant must have been driving too fast because he was unable to stop or swerve around the vehicle with which he collided. In awarding damages he awarded special damages but no damages under the Law Reform (Miscellaneous Provisions) Act, Cap. 74 and found that there had been contributory negligence on the part of the appellant to the extent that he was fifty percent to blame for the accident. In consequence the damages were reduced by one half. The appellant appealed against the finding of contributory negligence and the failure to award damages for loss of expectation of life.
(i)In the absence of expert evidence as to the estimated speed of the appellant it is not competent for trial court to come to a conclusion about the speed of a vehicle.
(ii)Awards for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act should be moderate and should-be fixed regardless of the age of the deceased.
Cases cited:(1)Benham v Gambling  1 All E.R. 7
(2)Yorkshire Electricity Board v Naylor  2 All E.R. 1
|GARDNER, J.S.: delivered the judgment of the court.
This is an appeal from a judgment of the High Court concerning a claim for damages arising out of a motor accident. The facts of the case were that the appellant was driving at night on the road from Ndola to Kabwe when he collided with an army truck which reversed across the road in front of him. As a result of the accident the two children of the appellant aged one-and-half and three-and-a-half years respectively, were killed and the appellant suffered a minor injury to his knee. The appellant's car was also extensively damaged.
The learned trial commissioner found that the appellant must have been driving too fast because he was unable to stop or to swerve around the vehicle with which he collided. In awarding damages he awarded special damages but no damages under the Law Reform (Miscellaneous Provisions) Act, Cap. 74, and found that there had been contributory negligence on the part of the appellant to the extent that he was fifty per cent to blame for the accident. In consequence he reduced the damages by one half. It is against the finding of contributory negligence and against the failure to award the damages for loss of expectation of life that the appellant now appeals.
Mr Chitabo, on behalf of the appellant argued that in the whole of the evidence there was no reference whatsoever to the appellant's speed, except the reply by the appellant, in an answer to the court, when he stated that his speed was between forty to forty - five miles per hour. Mr Chitabo further drew our attention to the fact that the learned trial commissioner, in dealing with the conduct of the appellant, said that he had collided with a stationary truck. We agree that this was a misdirection on the part of the learned trial commissioner in that there was ample evidence that the truck was in fact reversing across the road in front of the appellant's vehicle when the accident occurred.
Mr Mwanachongo on behalf of the State, whilst conceding that there was a misdirection by the learned trial commissioner, has maintained that the finding that the appellant was driving at an excessive speed was correct because even the speed of forty to forty - five miles per hour was excessive as indicated by the fact that one of the children received an injury to the skull as a result of which the brains were extruded. There was no attendance on behalf of the respondent at the trial and, therefore, no cross-examination of the appellant. There was no expert evidence as to the estimated speed of the appellant having regard to the damage to the vehicles and the injuries to the occupants and in the absence of such evidence, it was not competent for the trial court to come to a conclusion that the speed of the appellant's vehicle was excessive. The injury to the dead child may well have occurred had the vehicle collided
with an object at a much lesser speed. In the event we are bound to agree with Mr Chitabo that there was nothing in the evidence to indicate that the appellant was driving at excessive speed. We do not consider that a speed of forty to forty- five miles per hour at night on a main road is necessarily excessive, nor do we agree that there is any principle of law that a motorist, when driving at night must drive at such a speed that he may be able to avoid a lorry reversing across the road in front of him without warning. It follows therefore that this ground of appeal succeeds and we find that there was no contributory negligence on the part of the appellant.
We respectfully agree with the principles which have been laid down in the case of Benham v Gambling and Yorkshire Electricity Board v Naylor, that is to say, that awards for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act should be moderate and should be fixed, because, in the words of Lord Devlin in the latter case, the law is less likely to fall into disrespect if judges treat Benham v Gambling as an injunction to stick to a fixed standard than if they start revaluing happiness each according to his own ideas. We also agree with the comments of Viscount Dilhorne in that case that although Lord Simon in Benham vGambling had said that damages should be reduced in the case of very young children he did not say that they should be set substantially less than those awarded to an adult. With respect to Lord Simon we take the view that to differentiate between a young child and an adult because an adult has passed the risks and uncertainties of childhood is drawing a fine distinction about the immeasurable value of happiness which should not be left to the opinion of different judges.