Bencivenga v Amimo

High Court, at Machakos March 10, 1986

Abdullah J

Civil Case No 74 of 1983

Negligence – road traffic accident – motor vehicle emerging onto public road colliding with motor-cycle – driver’s view of road obstructed by object – whether driver of motor-vehicle negligent.

Damages – general damages – assessment of - for pain, suffering and loss of amenities – for loss of earnings - plaintiff suffering personal injuries in traffic road accident – fractures in bones of left leg and soft tissue injuries – plaintiff claiming that injuries prevented him from pursuing his career of choice – quantum of damages.

The defendant, while driving his motor vehicle, emerged from the driveway of his residence onto a public road and his vehicle collided with a motorcycle on which the plaintiff was a pillion passenger. The driveway used by the defendant before the collision was lined with a tall hedge which obstructed the view of traffic on the public road.

The plaintiff suffered various injuries on his left leg which included fractures of several bones, a torn knee ligament, various soft tissue injuries and post-haemorrhagic shock. The plaintiff sued the defendant claiming damages for pain, suffering and loss of amenities, loss of pleasure and salary in not having pursued his chosen career as a naval officer and loss of the accompanying benefit of free education and maintenance.

In his defence, the defendant contended that the motorcycle had been ridden at a high speed and that it had hit the bonnet of his car.

Held:

1. If the motorcycle was being driven at a high speed as the defendant contended, the defendant could have joined the rider as a party from whom to claim contributory negligence and indemnity, which the defendant had not done.

2. The defendant, who lived for sometime in the residence near which the accident had occurred, must have been aware of the traffic on the road and the obstruction of the high hedge on the driveway and as a prudent driver, it was his duty to stop and check for the traffic on both sides of the road onto which the driveway emerged before emerging onto that road.

3. The defendant did not stop and check for the traffic on both sides of the road before emerging onto it and as a result of that, the collision between his motor vehicle and the motorcycle occurred.

4. Where an injured person claims compensation for loss of earnings and for out-of-pocket expenses incurred by him, the basic principle is that the injured person should be placed in the same financial position as far as can be done by an award of money as he would have been had the accident not happened.

5. In the absence of proper evidence that the plaintiff was planning to pursue a career as a naval officer, the court could not award him damages for loss of the benefits which he would have earned in such a career.

6. For loss of amenities, pain and suffering, the plaintiff was entitled to general damages in the amount of Shs 200,000.

Judgment for the Plaintiff.

Cases

1. Yorkshire Electricity Board v Naylor [1968] AC 529; [1967] 2 All ER 1

2. Jones v Lawrence [1969] 3 All ER 267

3. British Transport Commission v Gourley [1955] 3 All ER 796; [1956] AC 185

4. Attorney General v Waiyera [1983] KLR 97; (1982-88) 1 KAR 84

5. Southern Engineering Co Ltd v Mutia, Musingi [1985] KLR 730; (1982- 88) 1 KAR 878

6. Mbatha, Mumo v Nzau Kiilu Machakos High Court Civil Case No 14 of 1985 (unreported)

7. Ali v Muhozozo [1983] KLR 602; (1982-88) 1 KAR 315

8. Ugenya Bus Services v Gachoki [1986] KLR 567

Texts

Hailsham, Lord et al. (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XII pp 446, 447, para 1147

Statutes

No statutes referred.

Advocates

Mr Mohamed for the Plaintiff