CIVIL CAUSE NUMBER 1464(A) OF 1993
R. MPHANGAZIRA PLAINTIFF
THE ATTORNEY GENERAL DEFENDANT
CORAM: MWAUNGULU, J
In this action the plaintiff is suing for general and special damages following a road accident that occurred on the 27th of March 1993. There was a collision between the plaintiff’s minibus and a motor vehicle of the Department of Customs and Excise. The plaintiff’s motor vehicle was severely damaged. It cannot be repaired. On 28th October the plaintiff took out this action. Judgment was obtained by default. The application to set aside judgment was abandoned. The only issue for determination by this Court is the amount of damages.
The damages claimed are special and general. For the former the plaintiff
is claiming the value of the motor vehicle. He puts the value at
K50, 000. He claims towing charges of K1, 400, hire expenses of K2,
505, the cost of a police report at K25, medical expenses of K60 and the
cost of a valuation repot at K35. On general damages the plaintiff is claiming
for loss of earnings and inconvenience. There is much ado about the value
of the car and loss of earnings. Much of that ado relates to proof of the
value for the motor vehicle.
“The value of the Liesbosch to the appellants, capitalised as at the date of loss, must be assessed by taking into account: (1) the market price of a comparable dredger in substitution; (2) costs of adaptation, transport, insurance, etc., to Patras [the place of the collision]; (3) compensation for disturbance and loss in carrying out their contract over the period of delay between the loss of the Liesbosch and the time at which the substituted dredger could reasonably have been available for use in Patras, including in that loss such items as overhead charges, expenses of staff and equipment, and so forth thrown away, but neglecting any special loss due to the appellant’s financial position. On the capitalised sum so assessed, interest will run from the date of the loss.”
The measure of damages then in case of total destruction of the chattel that is a going concern is the market value to enable the plaintiff to obtain a replacement.
The problems of establishing that value have been recognised by Courts.
Those problems arise here. The motor vehicle in question was bought in
1973. It was a runner. It might be old. It was being put to good use. One
can conceive of the difficulties one might have in giving a value to such
a car. Anyway its actual value may be less and, if awarded, may not enable
the plaintiff to find a replacement to enable him to continue using
the vehicle as a going concern. If such a value were to be applied, the
court will not have achieved restitutio in integrum. The problem was recognised
by Gorell Barnes, J., in The Harmonides  P 1, 6:
Here two categories of witnesses have come to help the court to arrive at the correct measure of damages. The plaintiff himself is claiming K120, 000. He says this is the value of a second hand motor vehicle he has found. This aspect of the evidence has not been challenged. The plaintiff also called Mr. Ali. Mr. Ali works for Mobile Motors, the car dealers of the motor vehicle damaged. He has been servicing this car for a long time. His evidence is that the replacement value of the motor vehicle is K50, 000. With the devaluation of the Kwacha, the replacement value is K70, 000. He told the court that a new car of the same make costs K270.000. The figure of K50, 000 was based on the amount the plaintiff was spending on the repairs of the motor vehicle. The replacement value, according to the witness, is what has to be paid for a second hand motor vehicle like the one destroyed. The defendant called Mr. Khonje. He has a qualification in mechanical engineering. He is working for the National Insurance Company. He put the market value of the car at K15, 000. His estimate is based on depreciation of the motor vehicle. All these were here to help the court arrive at the correct award.
The plaintiff’s claim for K120, 000 is to my mind exagerrated. The Court can only award the plaintiff the market value of the vehicle plus the other items referred to by Lord Wright. The plaintiff cannot go into the market, choose a car that suits his taste and come to Court and say to the court, ‘Give me this car.’ The evidence of Mr. Khonje, though evidence of value and Mr. Khonje also saw the motor vehicle, is of inferior weight compared to the evidence of Mr. Ali who deals in the type of cars and has been repairing the plaintiff’s car.( The Harmonides, ibid., The Ironmaster (1859) Swab. 441). The plaintiff pleaded that he is claiming K50, 000 for the value of the motor vehicle. The plaintiff can only do so for liquidated damages. General damages are at large. The plaintiff cannot plead an amount for them. The market value at the time of the loss is K70, 000 at devaluation value.
The plaintiff is also claiming for loss of profits. The plaintiff is not entitled to these where the motor vehicle has been destroyed. What the plaintiff is entitled to is what was said by Lord Wright in a passage I have referred to earlier. Once the Court has awarded the sum as mentioned by Lord Wright, the claim for profit must be approached with caution because of the fear of overlapping. Lord Wright said:
In The Llanover  P. 80 the Court determined that the claim for profit did not form a head of damages because as these were contained in the enhanced market value of the ship. In The Fortunity  1 W.L.R. 351 the amount was awarded but it was because it was ‘the expectation of a reasonable return on his capital, and not taking into account the fact that she was already fixed with considerable bookings for the next season, with a virtual certainty of full employment throughout the season.’ The other approach is to reduce the market value and award for the loss of profit ( The Philadelphia  P. 101). The change in the market value, therefore is not relevant to the normal measure of damages.
Here Mr. Ali has told the court that the market value of the motor vehicle is K50, 000. We cannot take the price at devaluation. This is catered in a way by changes in the rate of interest. The plaintiff will therefore be awarded K50, 000. There is no award for loss of earnings. On the capitalised sum interest will run from the date of loss up to the date of payment. The plaintiff is entitled to the other claims totaling K4, 025.
Made in open Court this 17th Day of September 1997.