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IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE

MSCA CIVIL APPEAL NO. 5 OF 2016

(Being High Court - Personal Injury Cause No. 809 of 2011)

BETWEEN

ANITA NAN CHIN GA

AND

RE-UNION INSURANCE COMPANY LIMITED

CORAM:

Chikopa, JA

Justice L. P. Chikopa, SC, JA

Justice D.F. Mwaungulu, SC, JA

Justice Anthony Kamanga, SC, JA

Kalua of Counsel for the Appellant

M' meta of Counsel for the Respondent

Minikwa, Recording Officer

JUDGEMENT

APPELLANT

RESPONDENT

I read the judgments of Mwaungulu, JA and Kamanga, JA, and we are unanimous that this appeal should be allowed with costs for the appellant in this Court and the court below, and further that the Registrar of the court below should assess the damages. I, nevertheless, fully concur with the analysis aw::! reasons set out judgment of Kamanga, JA, for allowing the appeal.

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Mwaungulu, JA

Precis

My Lords, on the evidence on the record and the law as I understand it, this appeal must be allowed. The Court below - and it is a pervasive practice - refused evidence on damages because the court wanted the Registrar to assess the damages.

This practice protracts the trial and increases costs. It creates two trial hearings, one for liability and another for assessment. It creates two processes that require additional procedures before the Judge and the Registrar. It, consequently, requires separate time allocation. This is not concomitant with judicial management at common law and under the Civil Procedure Rules, 1998, as now the Courts (High Court Civil Procedure) Rules illustrate.

Where the matter proceeds to trial before a judge, the judge must assess damages and assessment of damages by the Registrar must be the exception. The Registrar must assess damages where the judgment is obtained in default of notice of intention to defend or pleadings. This Court is now left in the insidious position where, having allowed the appeal, it has to order assessment of damages by the court below with the prospect of another appeal after assessment of damages. Moreover, this splitting of the proceedings can, as happened in Attorney General v Sunrise

Pharmaceuticals Ltd and another (2012) Civil Appeal No 474 (MSCA) (unreported), confuse on when the time starts to run for filing a notice of appeal under section 23 ( l ) of the Supreme Court of Appeal Act.

Background

This is what we know so far. On 27 March, 2011, the appellant was a passenger in motor vehicle registration number SA 4911 driven by his friend, Mr Patrick Mkhumba. At about 2:00 pm this vehicle collided with motor vehicle registration No TO 3883 driven by Mr James Nkando. The appellant sued in the court below Reunion Insurance Company Limited, the insurer of motor vehicle registration No SA 4911, for damages for negligence. The lower Court, for reasons appearing shortly, dismissed the appellant's claim. The plaintiff in the court below appeals against the judgment of the Court below.

The Pleadings

It is important, because this Court has difficulties with the findings of the Court below, to detail the pleadings and the evidence received in the Court below. The appellant, strategically, never sued the driver of motor vehicle registration No SA 4911, the driver and insurer of TO 3883. The appellant, however, pleaded that the driver of SA 4911 was negligent in driving at excessive speed in the circumstances; failing to keep any or any proper look-out; failure to have any or any sufficient regard to other road users; and failing to stop, to slow down, to swerve or in any other way so to manage or control the motor vehicle as to avoid the collision. The respondent pleaded

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that the driver of SA 4911 failed to keep any proper look-out; failing to take adequate precautions when using the road; failing to heed the presence of another motor vehicle on the said road; and

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failing to take any or any adequate measures so as to avoid any collision. The crucial evidence in

the trial came from the appellant.

The Evidence

On the crucial evidence for the negligence claim, there are two principal aspects of

evidence. First, she informed the Court below that Mr Mkhumba was speeding when approaching

the corner - 60 kmph. Secondly, she informed the Court below that, before, the impact, Mr

Mkhumba swerved from his carriageway into Mr Mkando's carriageway. She, when cross­

examined, informed the Court below that the motor vehicle she was driving in was travelling at 60

kilometers per hour. There was no further cross-examination on her assertion of the speed. In re­

examination, she informed the Court that the driver of SA 4911 was driving between 60-70 kmph.

She reiterated, again to very tepid cross-examination, that the driver of SA 4911 swerved into the

other's lane. She reaffirmed that the driver swerved to the other lane. In the course of her evidence,

she tendered, without objection by the respondent, "an abstract of the police accident report" - a

matter of much consternation in judgments of the Court below and in this Court. The appellant

also tendered a medical report - detailing injuries suffered.

The appellant's submissions in the Court below

The appellant in the Court below contended in her skeleton argument that the respondent

caused the accident and, therefore, the injuries she suffered - a fracture in the left femur, head

injury and bruises on the face - by negligence. She contended in her skeleton argument, based on

Banda and others v ADMARC [1990] 13 MLR 59, approved by this Court in Southern Bottlers Ltd

and another v Chimdzeka (1997) Civil Appeal No 41 (MSCA) (unreported) that a driver owes a

duty of care to other road users not to cause injury or damage to property. A driver, therefore, must

use reasonable care of a skillful driver.

Consequently, the appellant argued, based on Banda and other v ADMARC, Kachingwe v

Mangwiro Transport Co Ltd [1984-86] M L R 362; Bowhill v Young [1943] AC 92, 94 and

Charlesworth on Negligence, 8th ed (1990) para 9-187, page 742, that a skillful driver is one who,

among other things, avoids excessive speed, keeps a proper lookout and observes traffic signs and

signals. The appellant, relying on a passage in Charlesworth on Negligence, ante, paragraph 9-

213, contended in her skeleton argument in the Court below that a driver is under a duty to travel

at a speed which is reasonable and what is reasonable depends on the nature, condition and use of

the road and the amount of traffic present or anticipated on the road. The appellant, based on

Bowhill v Young, argued that this duty a driver owes to all who may be expected to be injured by

want of care. The appellant cited this statement from Randolph v Tuck [1962] 1 QB 175, 17, "The

duty is owed to those whom injury may reasonably and probably anticipated if the duty is not

observed."

The appellant contended in her skeleton argument in the Court below that the respondent,

the insurer, was liable for damages because of section 148 of the Road Traffic Act for injuries

caused to het-by the respondent's insured.

The respondent's submissions in the Court below

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The respondent in its skeleton arguments in the Court below, based on Matanda v Fachi

(1992) Civil Cause No 1481 (MWHC) (unreported); White v Kaondo and another [1993] 16 (2)

ML R 909; Chikwatu v Pearl Assurance Co Ltd [1994] ML R 31 and Batuwelo v Reunion

Insurance Company Ltd (2015) Civil Cause No 1215 (MWHC) ( unreported), contended that its

policy, as intimated in section 144 (b) of the Road Traffic Act never covered passengers. The

respondents in their skeleton argument contended that section 148 of the Road Traffic Act was an

exception to the law of privity of contract and, therefore, does not, concerning passengers, pierce

the doctrine of privity of contract.

The defendant in the skeleton arguments contended that the appellant failed to prove on a

balance of probabilities that the respondent's insured was negligent. Accepting that the driver of

motor vehicle registration No SA 4911 was driving at 60 kilometers per hour, the respondent

contends that the appellant never saw the motor vehicle coming. The respondent in skeleton

arguments in the Court below argued that the appellant's evidence was not corroborated. The

appellant never called her partner, the driver of SA 4911. The appellant submitted in his skeleton argument that failure to call the driver, her friend, was suspect.

The respondent's liability under sections 148 and 144 (b) was a matter for application for

determination of a preliminary application on a point of law before two registrars because the

earlier one was non-committal. The Court below, on an appeal from the first Registrar's decision,

ordered another Registrar to determine the appeal. The latter determined that the respondent was

properly a party. There is no appeal (to a judge of the court below).

The finding of the Court below

The court below found that the appellant had not discharged "her duty to prove her

assertions that the accident occurred and that it was the defendant's insured who was at fault." In coming to this conclusion, the Court below first, stated that an abstract of a police report offends

the rule against hearsay - as stated in Subramaniam v Public Prosecutor [ 1956] 1 W L R 965 and

locally in Mpinganjira v Sauka [ 1975-77] ML R 215 - it is meant to prove the truth of its contents.

The Court below, however, thought that the report could be admitted if all it was meant to show

was that a report was made. The Court below then, relying on a statement in Phipson on Evidence,

13th ed, paragraphs 16-16 to 16-18, said:

Exceptions to the rule include matters relating to admissions and confessions of

parties, statements of deceased persons, reputation and statements admitted as part of res gestae.

The Court below reasoned that the appellant never called the policeman who signed the police

abstract to identify the car and link the report to the car. The police officer who visited the scene

was not called to give expert opinion on the cause of the accident. The Court below continued:

The traffic police officer is specially mandated may be even trained to analyze road

accidents and give expert opinion on the cause or causes of accidents. The omission

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on the part of the plaintiff to produce such a crucial witness in a matter of this nature

may lead to some suspicion that perhaps the plaintiff is suppressing some material

facts. Especially in this case where there is no evidence that any attempt was made

to acquire the expert opinion or the testimony of a traffic officer in possession of

first hand information about the accident.

The Court below also derided that the appellant had not called the two respective drivers

as witnesses. On the appellant's testimony the Court below said:

The narration of the plaintiff as to the cause of the accident is not supported by

expert evidence considering that there was no proof that the plaintiff was a driver

or that she had driven a vehicle before in order to allow her to know with precision

the speed at which the vehicle was going and whether or not the accident took place

and who caused it. Even allowing that the plaintiff had personal knowledge of how

a motor vehicle works, it is hard to believe that at this hour precisely 2.00AM the

plaintiffs eyes were glued to the speedometer just at the time of impact while at

the same moment recording the exact movements of both motor vehicles.

In this Court, there are profuse submissions from both sides. Given the attitude this Court

takes of the findings of fact and the legal positions by the Court below, it is useful to detail

counsels' submissions on the practice and power of this Court on appeal to its civil appellate

jurisdiction. Both parties are ad idem, based on Order 3, rule l of the Supreme Court of Appeal

Rules, that the appeal is by way of rehearing. There is, however, tailored panache in the texture

and finesse of the appellant's argument's arguments on the scope of the power.

The appellant's submissions in this Court

The appellant contends, relying on Powell v Streatham Manor Nursing Home [1935] AC

243, 263, that the court considers all the evidence and the course of the hearing in the Court below.

The appellant relies on the definition of evidence in Kadango and others v Stagecoach Malawi Ltd

[ 1995] 2 M L R 667, 681:

When we talk of evidence, we mean the documents tendered by a witness and/or

statements made in court viva voce by a witness.

The appellant, relying on New Brunswick Railway Company v British and Fresh Trust Corporation

[1939] AC 1; Qilter v Mapleson (1882) 9 QB 67; and Attorney General v Birmingham Tame &

Rea Drainage Board [ 1912] A C 788 that an appeal court is not confined by the order or judgment

of the court below; it can receive fresh evidence or make any order required. The appellant cites

Cour's passage in Mhango v City of Blantyre [1995] 2 ML R 381, 387:

An appeal to this court takes the form of a rehearing. We have therefore subjected

the evidence to fresh scrutiny. We have bought our minds to bear on the issues

which called for decision in the lower court. We have reminded ourselves that the

appellant was required merely to prove his case on a balance of probabilities. We

have analyzed the evidence in the course of considering the grounds of appeal.

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The appellant, on questions of fact, concedes, on Limbe Leaf Tobacco v Chikwawa and others

[ 1996] M L R 480; Colonial Securities Trust ( 1896) 1 Q B 3 8; and Ligomeka and others v

Mwakhwawa (2006) Civil Appeal No 41 (MSCA) (unreported), that the burden is on the appellant

to show the trial judge's error.

The appellant submits that the Court must work with fortitude and certitude where, having

heard all, the judgment must not stand. The appellant relies on this statement from Coqlan v

Cumberland [1898] 1 Ch 704:

Even where ... the appeal turns on a question of fact the court has to bear in mind

that its duty is to re-hear the case and the court must reconsider the materials before

the Judge with such other material as it may have decided to admit. The court must

then make up its own mind, not disregarding the judgment appealed from, to

carefully weigh and consider it, and not shrinking from overruling it, if on full

consideration, it comes to the conclusion that it was wrong.

On Mahomed v Leyland Motors Ltd Corporation [] 13 M L R 204; Msemwe t/a Tayambanawo

Transport v City Motors [1992] 15 ML R 204; Dhanapala and others v Pereira (2002), the

appellant submits that this Court can overturn a judgment of the Court below if it is untenable and,

at any rate, ifthere is evidence to show that, on balance of probabilities, the case is made out. The

appellant relies on this Court's statement in Banda v Southern Bottlers Ltd (2013) Civil Appeal

Case No 7 (MSCA) (unreported):

Further and as we understand the law is trite that we can only overturn the trial

judge's conclusion if the same is clearly untenable in view of the evidence and the

law that was before him. Meaning in the instant case we will be obliged to overturn

the trial judge if the evidence shows that there was in fact evidence proving on a

balance of probabilities that the appellant suffered injury/damages.

Finally, citing Mithi and others v Reserve Bank of Malawi and another (2007) Civil Appeal No 10

(MSCA) (unreported), the appellant submits that, while great weight will be given to the trial

court's finding, the decision could be reversed if the grounds for the decision are unsatisfactory.

The appellant cites this statement from Barbour, Robb and O'Connor and Circle Investments Ltd

v Continental Agencies Ltd [ 1984-86] 11 M L R 217:

We are mindful of the fact that an appellate court is free to reverse the conclusion

of a trial judge, if the grounds given by him therefor are unsatisfactory by reason

of material inconsistence or inaccuracies, or if appears unmistakably form the

evidence that, in reaching them, the trial judge has not taken proper advantage of

having seen and heard the witnesses or has failed to appreciate the weight and

bearing of circumstances admitted or proved. In our opinion, in reviewing the

record of the evidence, an appellate court should attach the greatest weight to a trial

judge's opinion, because he saw and hear the witnesses and it should not disturb

his judgment on the facts unless it is plainly unsound.

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First, therefore, the appellant submits that the trial judge erred in law in excluding the

evidence of the police report on the ground that it was inadmissible because of the hearsay rule.

The appellant accepts the rendition of hearsay evidence in Subramaniam v Public Prosecutor

followed in Mchawa v National Bank of Malawi Ltd [ 1991] 14 ML R 266. The appellant submits,

however, that, the Court below having admitted the evidence when the appellant gave evidence in

chief could not later decide that it was inadmissible.

Secondly, the appellant contends that the judge erred in law in disregarding the police

report on the ground that it was hearsay evidence when there was no objection to its admissibility

(Day v Reginam 1923-60) 1 AL R (Mal) 625). The appellant relies on this statement in Gunde v

Msiska (1961-63) 2 AL R (Mal) 465,471:

It is hardly the function of the court in a civil matter to refuse to admit any particular

piece of evidence, the objection must come from the party against whom it is given.

The appellant also quotes this statement from Stir land v DP P [ 1944] A C 328:

No doubt, as was said in the same case, the court must be careful in allowing an

appeal on the ground of reception of inadmissible evidence when no objection has

been made at the trial by the prisoner's counsel. The failure by counsel to object

may have a bearing on the question whether the accused was really prejudiced. It

is not proper use of counsel's discretion not to raise an objection at the time in order

to preserve a ground of objection for a possible appeal..

The appellant also quotes this statement from Chinkango v Republic [2009] M L R 254, 256:

Besides, counsel who appeared on behalf of the appellant did not raise an objection

to the reception of the hearsay evidence. Learned Counsel must have taken the

view that such evidence did not prejudice the case for the appellant. The position

at law is that it is the duty of Counsel to raise an objection relating to improper

admission of evidence promptly during trial and that it is wrong practice for counsel

to remain silent when evidence is wrongly admitted in order to preserve a possible

ground of appeal ... we would come to a clear conclusion that there is no substance

or merit in the arguments advanced in support of the issue of improper reception of

hearsay.

The appellant further submits that the judge erred in law in deciding on admissibility of a

police report as hearsay evidence without first calling for argument of counsel for both parties.

The appellant concedes that a court can properly raise an issue necessary for determining a matter

before a court. The parties, relying on the following statement in Mishel Kumalakwaanthu t/a

Accurate Tiles Building Centre v MANJCA (2014) Civil Appeal 57 (MSCA) (unreported), submits

that the Court below should have required the parties to address it on the matter:

A court moreover has power to raise any matter suo motu if it is necessary to

determine the matter between the parties provided that the parties, when called

upon, address it on the matter; failure to ask parties to address the court on the

matter may be a miscarriage of justice (Dalek Nig Ltd v Oil Mineral Producing

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Development Commission (OMPADEC) (2007) 2SCNJ 218; Lamuratu Shasi and

another v Madam Shadia Smith (2009) SC (Part III) l ; Sunday Ghrgha v Adukumo

Toruemi and another (2012) 12 (Pt. V) 54: F.A Akinbola v Plisson Fisko Nigeria

Ltd and 2 Others (1991) 1 SC (Part II) 1; Ibrahim v Judicial Service Commission

(1998) 12 SCNJ 272; Okafor v Nnaife 91972) 3 ECSLR (Pt 99) 566; Muhammad

Juwo v Alhaj Shehu and another IO SCNJ 26; African Continental Bank v Losada

Nigeria Ltd and another (1995) 7 SCNJ 158). The court must hear both parties (Leaders and Company Ltd (Publishers of "this Day" v Major general Musa

Bamaiyi (2010)12 SC (Part IV) 55; more especially the one adversely affected by the decision (Ibidem; Alli v Asesonnloye (2004) 4 SCNJ 264; Gbadamosi Adigoke

v Chief Natnaniel Agboola Adibi and another (1992 6SCNJ 136; Tinubu v L.MB

Securities Pfc (2001) 12 SCM; and Ajuwonni v Akanni 1993) 12 SCNJ 32). The court will reverse a decision based on a matter taken by the court suo motu if the matter is substantial and has occasioned a failure of justice; not all matter suffice (ibidem). Where the matter raised suo motu goes to the root of the matter parties must be beard on the matter (the State v Moshood Oladimeji (2003) 11 SCM 121 ).

If the Court below had raised the matter, the appellant submits, she would have, based on statements from two judgments of the Court below-Mtaila v National Bus Company and another

(2011) Civil Case No 295 (MWHC) (unreported); andJimu v Nico General Insurance (2007) Civil Cause No 984 (MWHC) (unreported); Sturia v Freceia (1850) 5 App. Cas. 623; and Witton &Co

v Phillips [1926] Ch 284 - informed the Court that the hearsay evidence was, nevertheless, admissible. In Mtaila v National Bus Company and another the Court said:

Police reports are generally admissible under the exception to the rule against hearsay in that they are made in the regular course of business ... That police reports are admissible now seems settled in very persuasive decision in this court, the decision of the England and Wales Court of Appeal in Hoyle v Rodgers and another [2014] EWCA Civ 257 delivered on 15 January 2014. Lord Justice Clarke is clear on the principles on which reports, including police reports, are admissible in the court of law:

"In so far as the report consists of statements or reports statements of fact, it is, prima facie admissible. It is immaterial that it constitutes hearsay, whether primary or secondary.

In Jimu v Nico General Insurance the Court below said:

I must of course point out that medical and police reports as those being tendered in personal injury cases, are public documents. This is my view because these documents are made by public officers acting in discharge of a strict duty to enquire into, and satisfy themselves as to the truth of the facts contained in those documents (see White v. Taylor [ 1996] 1 Ch 150). In this regard, it must also be noted that there is no strict requirement for one to have personal knowledge of the facts recorded, this is on account of the fact that there is a duty on the part of public

8

officers to record facts which are true (see R v Halpin [1975] QB 907). What is

recorded in the medical and police reports, are supposed to be findings which are

done by a medical officer upon examining the person injured or police officer upon

investigating the circumstances surrounding an accident. Both the medical officer

and the policeman record their findings in reports, which reports are made under

the public authority of the Malawi Police Service and the Ministry of Health. In

view of this I must find that these reports are exempt from the rule against hearsay

and that they fall within the common law exceptions to the rule against. Further it

is the view of this court that within the context of Malawi these documents may be

justified on the grounds of reliability and convenience (see for instance Hill v,

Clifford [ 1907] 2 Ch 236 a case which involved the findings of misconduct by the

General Medical Counsel in the United Kingdom)."

The appellant submits, based on Mputahelo v Republic Mputahelo v Republic ([ 1999] M L R 222),

that a public document is which is made for public use and reference. The appellant submits that

this decision reiterated that the word 'public' refers to the purpose for which the records are made.

The appellant submits that the trial judge erred in dismissing the case on the grounds that

the appellant never called the traffic pol ice officer and the drivers of the two motor vehicles and

that the best evidence to prove the appellant's case would have been that of the traffic police

officer. The appellant submits that the Court below, in its view, regarded the traffic police officer

as an expert. Taking that view, the appellant submits that the traffic police officers opinion must

be regarded like that of any expert - an objective opinion, according to Pollivite v Commercial

Union Assurance Company plc [1987] 1 Lloyd's Reports- in relation to matters within the expert's

expertise. Based on Crossfield & Sons v Techno-Chemical Laboratories (1913) 29 TL R 378), the

expert, the appellant submits, should, however, expressed no opinion on the law or opinion which

a court has to determine. The appellant cites passages from two decisions of the Court below. In

Mtaila v National Bus Co Ltd and another the Court below said:

Most of the police reports are in this texture in that, in many respects, together with

findings of facts, express opinions on matters which, not based on technical

expertise, must be decided by the court as a trial fact. The police report tendered

here is no exceptional. Of course the police officer in question, in drawing the

conclusions which he drew, based on statements of others, including the conductor,

present at the scene of the accident. It could therefore, be true that the accident

occurred when the pedestrian, who died on the spot, crossed from the left to the

right of the road. The police officer however is delving in an area which is the

court's, in expressing what, for all purposes, is an opinion about what caused the

death. In this respect, such an opinion, unless expressed by the police officer as an

expert, is relevant and, therefore, inadmissible to prove that the National Bus

Company's driver did not cause the accident.

In Banda v Southern Bottlers this Court said:

9

Firstly let us say that whereas we agree that Dr Dzamalala might have been called

as some kind of expert witness, the law is not to the effect that his testimony should

be taken as the gospel truth. It will, like any other testimony, be the subject of

review just so that the court can ascertain that his conclusions stand up to scrutiny.

Where appropriate his testimony may be disregarded. Much the same is true about

sole testimony. It matters not in our judgment that a witness' evidence is the only

evidence. It matters that having subjected sole testimony to review a trial court is

of the view that such testimony or any conclusions arising therefore are incapable

of belief.

The appellant, therefore, submits that it was the function of the Court below, not the traffic police

officer, to determine what caused the accident.

The appellant further submits that it was unnecessary to call the police officer or the drivers

because the Court below was supposed to evaluate her evidence because she is the one who knew

the cause of the accident. The appellant relies on this passage from Kadango v Stagecoach Malawi

Ltd:

In the instant case therefore I thought the evidence of PWl made the case for the

plaintiff for much stronger than would otherwise be the case. Hearing the evidence

on valuation from the horse's own mouth, is more appealing to the ear than

otherwise. This is direct evidence, and readily acceptable to the court than not.

Finally, the appellant contends that the judgment of the Court below was against the weight

of the evidence; the Court below never considered the appellant's evidence in total. The appellant

submits that the appellant's evidence was stolid and not undermined by cross-examination.

Moreover, the appellant submits, the reasons that the Court below advanced for rejecting the

appellant's evidence, when put to scrutiny, as intimated in Mahomed v Leyland Motors

Corporation (Malawi) Ltd [1990] 13 ML R 204, are wanting.

The Respondent's submissions in this Court

The respondent first submits that the Court below went no step wrong in holding that the

presence of the drivers and the traffic police officer, as vital witnesses, was necessary and the

appellant should have called them and that, failure to call them, adversely affected the appellant's

case. The plaintiff relied on NBS Bank Ltd v BP Malawi Ltd (2007) Commercial Case No 12

(MWHCCom) (Bt) (unreported); Maonga and others v Blantyre Print and Publishing Company

Ltd [1991] 14 ML R 240; Leyland Motor Corporation Ltdv Mohamed (1983) Civil Cause No 240

(MWHC) (Lil) (unreported). The respondent submits that there was no evidence that these

witnesses are not available. The respondent further submits that the Court below found that these

witnesses were crucial and that, based on this Court's decision in Mahomed v Leyland Motors

Corporation (Mal) Ltd [ 1990] 13 M LR 2004, this Court must defer to the findings of the Court

below because it is that court that had the advantage of observing the witnesses.

The respondent further submits that the Court below properly excluded the abstract police

report as hearsay because the author of the abstract was not called and that the abstract of a police

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report is not a report at all. On this point the respondent submits that, based on Subramanian v

Public Prosecutor, a police report is hearsay and it can only be admitted as an exception to the

hearsay rule if it is a public document.

The respondent relies on the definition of a public document in Irish Society v Bishop of

Derry [ 1846] Cl & F 641 where a public document was define as a document that is made for the

purpose of the public making use of it, and being able to refer to it and it should be made for the

use of being kept public, so that the persons concerned in it may have access to it afterwards. The

respondent also relied on a decision of the Court below in Khaiya v United General Insurance Co

Ltd (2013) Personal Injury Case No 34 (MWHC) (Bt) (unreported) where the Court below stated

that, for a document to be a public document, there are must be four requirements: the document

must be available for public inspection, the person compiling it must be under a public duty to

satisfy oneself of the truth of the statement, it must concern a public matter and the document must

have been created to be permanent. The Court below concluded that police traffic accident reports

do not qualify and, as such, they are only available to prove that they were made. The respondent,

therefore, further, relied on Justin v Prime Insurance (2014) Civil Cause No. 74 (MWHC) (Bt)

(unreported); Nthala & others v Real Insurance Company Ltd (supra); Matemba v Banda & others

(2010) Personal Injury Cause No. 1750 (unreported); Chanza v Banda & others (20 I 1) Civil Cause

No. 59, Chipapa v Nico General Insurance Company Ltd (2010) Personal Injury Cause No. 1937

(unreported) and Watson v General Insurance Company Ltd (2010) Civil Cause No. 1570

(unreported). On the absence in court of the author of the report, the respondents relies on Jimu v

Prime Insurance Company Ltd and Justin v Prime Insurance Company Ltd. The respondents

relying on Jimu v Prime Insurance Company Ltd and Chilomo v Prime Insurance Company Ltd

(2011) Civil Cause No. 564 (unreported), make the further point that police abstract reports, not

being police reports, are not admissible in totality.

The respondents, because of this plethora of decisions - from this Court and the Court

below - Mtaila v National Bus Company and another and Jimu v Nico General Insurance

Company Ltd that relied on Hoyle v Rodgers and another (2014) EWCA Civ. 257, were per in

curiam. Furthermore, the respondents submit that Mtaila v National Bus Company and another

and Jimu v Nico General Insurance Company Ltd that relied on Hoyle v Rodgers and another are

distinguished from the case under consideration because, unlike the latter, where there was a police

abstract report, the former involved police reports. The respondents rely on this statement in

Chrissie v New Building Society Bank (2004) Civil Cause No. 2707; Neutral citation: [2008]

MWHC 203:

I noted that in submissions the plaintiff referred to the evidence of a police report.

There was in fact no police report. What was shown in court was a police report

abstract.

The respondent further submits that, wording in the abstract report is inconsistent with the abstract

being a public document. The respondent refers to the abstract's PARTICULARS OF ROAD

ACCIDENT and MEMORANDUM. The former has this statement:

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'this is not a copy of a police report but merely an abstract of such particulars as

may be useful to persons who may be concerned'

The latter has this statement:

'that Police Reports, books and records are confidential and privileged and the

Inspector General is unable to accede to any request for copies of such documents'

and further that abstracts are not, and do not purport to be actual copies of reports.

The respondent submits that the court below never erred, the document having been tendered

without the respondent's objection, in countermanding as in admissible. The respondent relies on

section 9 of the constitution:

The judiciary shall have the responsibility of interpreting, protecting and enforcing

this constitution and all laws in accordance with this constitution in an independent

and impartial manner with regard only to legally relevant facts and the prescriptions

of the law.

The respondent therefore contends that, admissibility of evidence being a question of law,

the Court below was duty bound to apply it and would have abdicated its constitutional duty were

it not to do so. The respondents, therefore submits that cases of Stir/and v DPP; Chinkango v

Republic and Day v Reginam the appellant refers to, are inapplicable. On the same score, the

respondent distinguishes Gunde v Msisya based on that this case was dealing with evidence on a

matter not pleaded. Equally, the respondent, relying on Matemba v Banda and Perreira & another

v Prime Insurance Company Ltd, submits that there was no obligation on its part to introduce

evidence to rebut that which was in admissible.

Finally the respondent counteracts the appellant's assertion that the judgment of the court

below was against the weight of evidence. The respondent contends, based on Kachiwanda v

Eastern Produce Malawi Ltd [2008] MLR 183, Chrissie v New Building Society Bank Ltd and

Kachiwanda v Eastern Produce Malawi Ltd, that the burden always remained on the appellant to

prove, on balance of probabilities, that the respondent's insured was negligent. The respondents

submits that, on the rendition of the tort of negligence in Blyth v Birmingham Water Works

Company Ltd (1856) Ex 781, 784 and Mwase v Chimbala and another (2009) - it was, based on

Juma v Mandala Motors Ltd [1993] 16 (1) ML R 139, up to the appellant - and the appellant

failed - to establish facts to prove negligence. Specifically, the respondent submits, based on

Malipa v Kalichelo and another, that the appellant should have clearly emerged with evidence of

circumstances showing failure to control the motor vehicle.

Reasoning

Reading the judgment of the Court below, submissions in this Court and the judgment -the majority judgment - of Kamanga, JA, which was read in advance, it is necessary to consider the nature of police traffic accident clash reports. They are not sui generis but part of a genre of reports that police or commissions make by law or declaration - under section 89 ( 1) (g) of the Constitution the President can appoint a commission of inquiry on any subject matter. Such reports can involve aviation (Hoyle v Rodgers [2014] EWCA Civ 257; Lambson Aviation v Embraer

12

Empresa Brasileira de Aeronautica SA. (2001 ), unreported; Budden v Police Aviation Services Ltd [2005] P.I.Q.R. P 362; Bristow Helicopters Ltd v Sikorsky Aircraft Corpn [2004] 2 Lloyd's Rep 150; Stisted and Ors v Smith and Others [2012] QB HQ12X00355; Beech Aircraft Corporation v Rainey 488 US 153; Universal Airline Inc, Inc v Eastern Air Lines, Inc, 188 F.2d 993 (D.C. Cir. 1951 ); Lobel v American Air Lines, Inc 192 F.2d 217 (2d Cir. 1951 ), Israel v United States 247 F.2d 426 (2d Cir. 1957; Berguido v Eastern Air Lines Inc 317 F.2d 628 (3d Cir. 1963); Fidelity & Casualty Co of New York v Frank 214 F. Supp. 803 (D. Conn 1963), modified sub nom. Fidelity & Casualty Co. of New York v. Occidental Life Ins. Co. of California, 227 F. Supp. 948 (D. Conn. 1964).American Airlines, Inc. v. United States 418 F.2d 180 (5th Cir. 1969), Falk v. United States 53 F.R.D. 113 (D. Conn. 1971 ). Whatever the nature of the report, same questions and principles of law of admissibility are dominant and prominent (Wheeler v Simms 951 F.2d 796, 113 S Ct. 320 (19992); Johnson v Lutz 170 N.E. 517 (N.Y 1930); Palmer v Hoffman, 318 U.S. 109 (19430; Dorsey v City of Detroit, 855 F.2d 338 (6th Cir. 1988; Stone v Morris, 546 F.2d 730 (7th Cir. 1976). In Hoyle v Rodgers [2014] EWCA Civ 257, of course, as the majority observe, admittedly, the report involved an aviation accident report. The report, however, can be a police report - in Dorsey v City of Detroit it was a police report during an arrest. In Estate of Eannelli (1955), 269 Wis. 192,212, 68 N.W.2d 791 it was a coroner's certificate of death. The basis of the report is not a reason for distinguishing between cases where reports are made. It is, therefore, not right, to distinguish, based on what the report was for Hoyle v Rodgers which laid principles of general application to all such reports - including traffic accident reports. In the course of its judgment in Hoyle v Rodgers, the England and Wales Court of Appeals made this statement of general application:

In so far as the report consists of statements or reported statements of fact, it is,

prima facie, admissible. It is immaterial that it constitutes hearsay, whether primary

or secondary.

Even in Hoyle v Rodgers the England and Wales Court of Appeal never understood the principle

to be confined to aviation accidents alone: the court considered proceedings by other courts or

institutions like tribunals which are required extra judicially to investigate and make specific

findings of facts: arbitrators, (Land Securities Pie v Westminster City Council [ 1993] 1 WLR 286);

coroners' juries, (Bird v Keep [1918] 2 KB 629); persons conducting a Wreck Inquiry. (Waddle v

Wallsend Shipping Co. [1952] 2 Lloyd's Rep l 05); individuals, of however great distinction,

conducting extra statutory inquiries such as Lord Bingham's Report into the Supervision of BCCI:

Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1.

Specifically, the rule about a record or account of business includes government business.

In Malek v Federal Insurance co., 994 F.2d 49 (2d Cir 1993) it was department of social workers

notes. In Wheeler v Simms it was a prisoner's file. In Dorsey v City of Detroit it was a police report.

In Ward v Arkansas State Police it was a police department investigatory report. In Wild Fisher v

Thompson 50 NC App 724, 275 S.E.2d 507 (1981); Wentz v Unifi 89 N.C. App 33; 365 S.E.2d

(1988); Keith v Polier 109 N.C. App 94,425 S.E.2d (l993er v Classified Risk Insurance Co 47

Wis. 2d 286 (1970), 177 N.W.2d 109); Jacobson b Bryan (1944), 244 Wis.359, 12 N.W.2d 789;

Novakofski v State Farm Mutual Automobile Insurance Co. (1967), 34, Wis.2d 573, 126 N.W2d

714; Voigt v Voigt (1964), 22 Wis.2d 573, 126 N.W.2d 543; Baker v Elcona Homes Corporation

13

588 F.2d 551 (6th Cir. 1978) and Smith v Rural Mutual Insurance Co (1963) , 20 Wis.2d 592, it

was, like here, traffic accident reports.

All these reports, first, involve inquiries, for our purpose, with witnesses, in the course of

which witness statements are collected. Secondly, they involve examination of the scene, the

vehicles, the property or person involved in the accident, damage to property as victims or

perpetrators. In the course of the latter, where, for example, cars have been removed, the exact

position of the place of impact and the vehicles may be gathered from testimony. Where, however,

there has been no movement, the traffic police officer report is by observation. A report on the

former is hearsay; a report on the latter would not be hearsay. These aspects reflect the texture of

police traffic accident reports. Police reports, therefore, are a hotchpotch of hearsay and direct

evidence. It is inaccurate, therefore to hold that police traffic accident reports are hearsay and,

therefore, inadmissible in limine.

Admissibility

It is this duality that influences the law on admissibility and tendering of police traffic

accident reports. Rejecting the reports completely is, so to speak, throwing the baby with the water.

That is not the attitude of the law as can be seen from this passage in Hoyle v Rodgers [2014]

EWCA Civ 257. The England and Wales Court of Appeal first discusses the nature of these reports:

The Report is a mixture of statements of fact and statements of opinion. In paragraphs 30-42 of his judgment the judge carefully analysed what was factual evidence and what was opinion in terms which I do not intend to rehearse. Some of the statements of fact are observations made by the inspectors themselves e.g. of the location of the wreckage or the nature and extent of the damage. Some are reports of what the pilot told the inspectors.

The England and Wales Court of Appeal continues:

Insofar as the Report consists of statements or reported statements of fact, it is,

primafacie, admissible. It is immaterial that it constitutes hearsay, whether primary

or secondary. Insofar as it consists of expert opinion I consider its status further

below.

Where, therefore, a judge is sitting with the jury, the law and practice is that the traffic reports

must be ridden of hearsay - police traffic accident reports are redacted by the parties or by

prompting from the court. Where, therefore, the judge sits alone, police traffic reports are admitted

and tendered, as a matter of course, in evidence. The judge, in the judgment, must, unless it is

admissible, disregard the hearsay. If, as is suggested, police traffic reports were not to be admitted

in civil and criminal proceedings, we would be the only jurisdiction which does not recognise the

importance - and, therefore, their dmissibility - of police traffic reports in civil and criminal

proceedings.

Police traffic accident reports can be used to refresh memory - a very important evidential purpose. More importantly, traffic accident reports can contain admissible hearsay and direct

14

evidence. For parties traffic accident reports are useful for examination-in-chief, cross­examination and re-examination a point stressed in Beech Aircraft Corporation v Rainey 488 US 153, concerning an aviation report:

As the judge rightly observed, the distinction between fact and opinion is not always clear; some statements in the Report might be regarded as mixed fact and opinion and in relation to technical matters there was no clear line between statements of fact and statements of opinion.

The potential value of this material to anyone seeking to establish the cause of the accident (and any culpability therefore) is obvious. The inspectors are experienced and expert individuals fulfilling a public duty to investigate air accidents and incidents for the purposes of preventing further accidents or incidents in future. It is no part of their function to attribute blame or responsibility. There is, thus, no realistic possibility of their report being slanted so as to support or refute a claim that any individual or corporation is, or is not, at fault. Their investigation is carried out as soon as possible after the accident or incident. The investigators have the power, and, in practice, the ability to obtain the necessary information from a wide range of sources in order to establish, on the basis of information obtained soon after the relevant events, a composite picture of what happened and why. They need to do that in order to try and avoid it happening again. l agree with the judge when he said that a non-lawyer would be astonished that the report of the AAIB was not something to which a court could even have regard.

These considerations are important because they influence the law on tendering of police traffic accident reports.

When a witness mentions a police traffic accident report in chief, there is a duty to tender it. Equally, if not mentioned in chief, it is so mentioned in cross-examination, the opposite party or the court can insist that it be tendered. The court and the other party are entitled as a matter of law to examine it. The same principle applies where the police traffic accident report is used to refresh memory. The admissibility of the police traffic accident report, therefore, on this score, bases on fairness. The admissibility of police traffic is further based on different justifications at common law and in legislation.

Sitting at nius prius and now on appeal, the common law, on admissibility in a court of law of accounts or statements which are an entry in a book of record or an entry in the course of business, has not changed. These exceptions to the hearsay rule - the rule that statements or assertions other than those of the witness present in court, subject to cross-examination - are distinct from the other exception to the hearsay rule - admissibility of public documents. Police accident reports or police traffic crash reports, as they are known in other jurisdictions, are more often admitted more on that they are an account of what happened and/or records in the course of business than that they are public documents (Ntaila v National Bus Company and another, Fisher

v Thompson 50 NC App 724,275 S.E.2d 507 (1981); Wentz v Unifi 89 N.C. App 33; 365 S.E.2d (1988); Keith v Polier 109 N.C. App 94,425 S.E.2d (1993).

15

In criminal proceedings the reports are admitted by virtue of the Criminal Procedure and

Evidence Code. We do not have a specific and equivalent evidence code in civil proceedings and,

therefore, in civil proceedings, unlike in criminal proceedings, much draws from statutes of general

application before 1902 and the common law. The Criminal Procedure and Evidence Code,

however, is a codification of the common law which, at least in the United Kingdom, until the

Police and Criminal Evidence Act, never had a specific criminal procedure code.

Sections 174 and 175 of the Criminal Procedure and Evidence Code brings the dual

common law principles on which police accident reports are admitted as exceptions to the hearsay

rule; as entries in books of account or record; entries in the course of business. Section 17 4 (]) and

(2) of the Criminal Procedure and Evidence Act provide:

(I) A statement contained in any entry in a book of account, regularly kept in

the course of business, is a relevant fact whenever it refers to a matter into

which the court has to inquire, but such a statement shall not alone be

sufficient evidence to charge any person with liability.

(2) An entry in the public or other official book, register or record, stating an

issue or a fact, and made a public servant in the discharge of his official

duty or by any person in performance of a duty specially enjoined by the

law of the country in which such book, register or record is a relevant fact

These two sections, therefore, account for the exception to the hearsay rule in criminal

proceedings. Subsection 2 applies the rule to records of any country - including Malawi. In

criminal proceedings, however, police reports are admitted as public documents.

Moreover, section 245 of the Criminal Procedure and Evidence Code is an all­

encompassing enabling power under which the Criminal Procedure and Evidence (Documentary

Evidence) Rules are made. Section 245 of the Criminal Procedure and Evidence Code provides:

(1) The Chief Justice may make rules relating to documentary evidence in criminal

proceedings under this code.

(2) In particular and without prejudice to the generality of the power conferred by

subsection (1), such rules may provide for-

(a) the admission of documentary evidence in criminal proceedings under

this Code;

(b) the manner in which documentary evidence is to be proved;

( c) notices for the production of documentary evidence is to be proved;

( d) the proof of public and private documents and copies thereof;

( e) presumptions to be made regarding documentary evidence;

(f) the exclusion of oral evidence by documentary evidence; and

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(h) such other matters regarding documentary evidence as may be

considered necessary.

Rule 7 (1) of the Criminal Procedure and Evidence (Documentary Evidence) Rules

provides for what are public documents in criminal proceedings:

(1) The following documents are public documents-

(a) documents forming the acts or records of the acts of

(i) the sovereign authority;

(ii) official bodies and tribunals; and

(iii) public bodies, legislative, judiciary and executive whether of Malawi or of any

other country;

(b) public records kept in Malawi of private documents;

(c) documents other than documents specified in paragraph (b) which are public

documents within the meaning of the Authentication of Documents Act.

(2) All documents, other than those specified in subrule (1) are private documents.

Rule 7 (1) (c) of the Criminal Procedure and Evidence (Documentary Evidence) Rules provides:

The following documents are public documents . . . documents other than

documents specified in paragraph (b) which are public documents within the

meaning of the Authentication of Documents Act.

Section 2 of the Authentication of Documents Act provides:

"public document" means-

(a) a document emanating from an authority or an official connected with the courts

or tribunals of any State being a party to the Convention, including those emanating

from a public prosecutor, a clerk or registrar of a Court, a sheriff or a process server;

(b) an administrative document not hereinafter excluded;

( c) a notarial act;

(d) an official certificate which is placed on a document signed by a person in his

private capacity, such as an official certificate recording the registration of a

document, or the fact that it was in existence on a certain date, and an official or

notarial authentication of a signature,

but does not include-

(e) a document executed by a diplomatic or consular agent;

17

(f) an administrative document dealing directly with a commercial or customs

operation;

Police reports under these legislation are public documents - administrative documents under

section 2 of the Authentication of Documents Act - and as documents forming the acts or records

of the acts of public bodies, legislative, judiciary and executive whether of Malawi or of any other

country under Rule 7 ( 1) ( a) (iii) of the Criminal Procedure and Evidence (Documentary Evidence)

Rules.

Act:

This definition applies across the law because of section 2 (4) of the General Interpretation

Where the interpretation of any word or expression is defined in this or any other

written law, such definition shall extend, with the necessary modifications, to

interpretation of the grammatical variations and cognate expression of such word

or expression.

The judicial definitions in Jimu v Nico General Insurance Company Ltd are subservient to it. Police

reports, therefore, as an exception to the rule against hearsay, would be admitted as public

documents because of the common law exception.

In our jurisdiction the first case on admissibility of police accident as public documents is

Jimu v Nico General Insurance Company Ltd. That decision, based on White v Taylor [1969] 1

Ch 150, regarded police accident reports as public documents and, therefore, admissible as an

exception to the hearsay rule. In this case the court said:

As regards the document being admissible as a public document this is a subject

which is dealt with in Cross on Evidence, 3 rd ed. (1967) at p.428, and I think that

the authorities establish that to constitute a public document for the purposes of this

rule the document must be brought into existence for the purpose of its being

retained indefinitely as a document ofrecord, available for inspection by the public.

The Court below in Jimu v Nico General Insurance Company Ltd then said:

[JNGICL]

In Hoyle v Rodgers. to the England And Wales Court of Appeal, and this applies to all such reports,

there was no doubt that the report is a public document; it was clear to the Supreme Court what

was not a public document: "The report is a public document but the records of the investigation

are not."

It is this approach which led to the Court below in Justin v Prime Insurance Co Ltd and

Jimu v Prime Insurance Co Ltd to distinguish Ntaila v National Bus Company and another based

on definition of a public document. As demonstrated, based on the General Interpretation Act,

police traffic accident reports would be administrative documents or documents forming the acts

or records of the acts of public bodies, legislative, judiciary and executive whether of Malawi or

of any other country and, therefore, public documents. There are, however, conceptual problems

with this approach because of the hearsay rule and the nature of public documents.

18

Public documents, by their nature, are evidence of what they contain without any

contradiction. Police traffic accident reports cannot, by their nature, have the effect of public

documents properly described. If police traffic accident reports were understood this way, most

facts, based on hearsay, would be conclusive. It would be the police, not the court, who would

determine adjucative matters - properly for the courts. It is for this conceptual problem that police

traffic accident reports are not admitted on that they are public documents.

At this point, it might be necessary to state that all that is required is a report on the accident

- the form or format of the report is not a matter for the courts. The distinction between a report

and an abstract of a report or an abstract report is, therefore, perfunctory. It is really up to the

police, in the absence of a format of a report, to decide the form and extent of the report. A court

cannot be a connoisseur of reports that administrative reports - they come in all shapes and sizes

- compose or form. As seen earlier in Malek v Federal Insurance co., 994 F.2d 49 (2d Cir 1993)

it was department of social workers notes. In Wheeler v Simms it was a prisoner's file. In Dorsey

v City of Detroit it was a police report. In Ward v Arkansas State Police it was a police department

investigatory report. In Romano v Howarth, 998 F .2d 101 (2d Cir 1993) it was a prison psychiatric

progress notes. In Wheeler v Simms it was a prison's record of plaintiff's medical condition. In

Walker v Wayne County, 850 F.2d 433 (7th Cir. 1988) it was a criminal investigation report. In

stone v Morris 546 F.2d 730 (7th Cir.) it was a prison correctional counselor of the incident. In

Fisher v Thompson 50 NC App 724, 275 S.E.2d 507 (1981 ); Wentz v Unifi 89 N.C. App 33; 365

S.E.2d; Wilder v Classified Risk Insurance Co 47 Wis.2d 286 (1970); 177 N.Wd2 109; Jacobson

b Bryan (1944), 244 Wis.359, 12 N.W.2d 789; Novakofski v State Farm Mutual Automobile

Insurance Co. (1967), 34, Wis.2d 573, 126 N.W2d 714; Voigt v Voigt (1964), 22 Wis.2d 573, 126

N. W.2d 543; and Smith v Rural Mutual Insurance Co (1963) , 20 Wis.2d 592, it was a police traffic

accident report. An abstract, like the one under consideration, is more than just notes or entry; it

need not be rejected on that score.

Neither should a court be way led by the opinion of the police on what they can or cannot

do or think is the legal effect of their reports. The Court below in Chrissie v New Building Society

Bank drew this distinction and rejected a police abstract report as not a report. This the Court below

did without examining the content of the abstract report. The abstract report in this case and, it can

be thought, in all abstract reports, has all and withal that would be necessary detail or information

for the Court's purpose. When a report, abstract or otherwise, has such information and detail,

there is no reason in law, why it should not be accepted as the report or in lieu of the report. The

wording of the abstract traffic report is typical to all such reports and a quick search will show that

there are specific accident traffic accident reports for every country including Kenya. The High

Court of Kenya accepted the abstract report - Wanyonyi v Ngugi Njuguna t/a Golden Eagle Bus

Serviced Ltd [2016] eKLR; Nyangoya v Bash Haulliers [2016] eKLR; Kungu v Githinji and

another [2014] eKLR. In the last two cases, abstract accident reports were not used was because,

like here, who prepared the abstract report was not called to be cross-examined. Abstract traffic

reports, the format the police have chosen as or in lieu of a police traffic accident report, are

admissible. One reason why abstracts are preferred to a full report is that a full report may contain

statements - some hearsay - that should not be introduced to the court indirectly.

19

Police traffic accident reports are allowed in because they are an account of what occurred and obtained in the normal course of business. In this sense police traffic accident reports are, at common law, treated, just like private documents, which are an account of what happened and what is in the course of business. Under this rule, that the document was in the course of public business is incidental, not consequential. This approach allows a court, even after documents are tendered, to evaluate them. Where, therefore, there is hearsay evidence, the court will exclude it, unless it falls in the known exceptions. When a trial court does this, it is not foul of the law. Where the evidence in the police traffic is direct evidence - as a result of observation - by the compiler of the report, it is treated as such.

Where the evidence is hearsay, the court, unless it falls in the exception will not, even if it was admitted and tendered, regard it where, like here, the one who compiled the report is not called as a witness. Equally, the direct evidence will be treated the same way where the person who compiled the report is not called to testify and be subjected to cross-examination. Such evidence is hearsay unless the author testifies. That the evidence was tendered or admitted does not empower a court, in its determination of the rights between the parties, to regard evidence otherwise inadmissible as determinative. The Court below, therefore, properly disregarded the police traffic accident report as offending the rule against hearsay. The police traffic accident report was clearly admissible, not necessarily as a public document, but as a record of an account and a record in the course of business.

The exclusion of this evidence is not determinative. The Court below and, indeed this Court, had to consider whether there was other evidence to prove or disprove the claim. The court below considered the appellant's testimony. It discounted the appellant's testimony for reasons, of course, that are problematic. The court below considered the appellant's testimony suspect first because the appellant did not call the drivers of the two cars and the passengers who the court considered material witnesses. All cases cited by the Court below and in submissions in this Court and the Court below, however, converge on that the witness not called was a material witness to a party.

The witness must be crucial to the party calling the witness and to the court in determining the matter before it. The zenith of the respondent's arguments and the judgment of the Court below is that a police traffic accident report and the witness who compiled it are crucial - almost invariably - to prove what happened and negligence. Were this Court to decide that this was the case, that would be a gross error. The claimant must, by evidence, prove negligence. There cannot be any prescription about what nature and quantity of evidence a claimant must bring. There is no duty to introduce all the evidence; there is a risk if there is insufficient evidence. lt cannot, therefore, be suggested that a police accident report is necessary and invariably so to prove ne.gligence. Where there is a police traffic accident report, a court has just an additional item, among many, of evidence to consider. In this case, where, therefore, there was viva voce evidence of the account of the accident, viva voce evidence cannot be discounted merely because the police traffic officer who compiled the report, as a material witness, was not called.

On the facts of this particular case, the police officer was not called and the report, whether it contained evidence from witnesses (which would be hearsay, if the witnesses were not called)

20

or from the police traffic officer's observations, would be hearsay. A police traffic officer's

evidence is not the only proof of negligence - let alone to prove that an accident occurred.

The Court below thought that a police traffic officer was always an expert and that a court

cannot find negligence without the expertise of a police traffic officer's expertise. The only expert

who may be available for motor vehicle collision is a collision expert. These are trained experts.

A police officer does not become a collision expert by being a policeman or experience with

accidents. There was no evidence that the police officer was a trained collision expert. There was

no suggestion from the appellant that she was tendering the police accident report as a collision

expert collision. The Court below should not, therefore, considered that the police officer's

presence at the trial was, as it states severally, a necessary expert. The absence of a traffic expert

- even if this officer was one - could not, therefore, undermine the appellant's viva voce evidence

as to the cause or the circumstances of the accident. Additionally, if the traffic officer was an

expert, the presentation could be accepted as an opinion of an expert- it would not be inadmissible

hearsay. The opinion would, most certainly, be admissible but not binding on the Court below.

Moreover, the police traffic officer could not, except on hearsay, establish the circumstances of

the accident.

Moreover, the Court below stated that it was preferring the best evidence. This, however,

is a recourse to the best evidence rule. The best evidence rule is not a rule of law, it is a rule of

prudence. The rule is now dead as dead can be (Kilembe v Total Malawi Ltd (2014) Civil Appeal

No 17 (MSCA) (unreported); Blantyre Newspapers Ltd v Simango (2011) Industrial Relations

Court Appeal Case No 6 (MHC) (Bt) (unreported); Land Securities Plc v Westminster City Council

[1993] 1 WLR 286; Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563; Springsteen v

Masquerade Music Ltd[2001] EMLR 25; Ventouris v Mountain (No 2) [1992] I WLR 887; Kajala

v Noble [1982] 75 Cr App R 149; Regina v Governor of Pentonville Prison, Ex parte Osman [1990]

1 WLR 277 Tang Yiu Hong Eric v HKSAR, [2006] HKCU 92; Jet Holding Ltd and others v Cooper

Cameron (Singapore) Pty Ltd and another [2006] 3 SLR 769); Hoyle v Rodgers. In Springsteen v

Masquarade Music Limited where Parker LJ, with whom Laws and Waller LJJ agreed, said:

In my judgment, the time has now come when it can be said with confidence that

the best evidence rule, long on its deathbed, has finally expired. In every case where

a party seeks to adduce secondary evidence of the contents of a document, it is a

matter for the court to decide, in the light of all the circumstances of the case, what

(if any) weight to attach to that evidence. Where the party seeking to adduce the

secondary evidence could readily produce the document, it may be expected that

(absent some special circumstances) the court will decline to admit the secondary

evidence on the ground that it is worthless. At the other extreme, where the party

seeking to adduce the secondary evidence genuinely cannot produce the document,

it may be expected that (absent some special circumstances) the court will admit

the secondary evidence and attach such weight to it as it considers appropriate in

all the circumstances. In cases falling between those two extremes, it is for the

court to make a judgment as to whether in all the circumstances any weight should

be attached to the secondary evidence. Thus, the "admissibility" of secondary

21

evidence of the contents of documents is, in my judgment, entirely dependent upon

whether or not any weight is to be attached to that evidence. And whether or not

any weight is to be attached to such secondary evidence is a matter for the court to

decide, taking into account all the circumstances of the particular case." Once again,

we find the modern approach reiterated to the effect that, generally speaking, all

evidence will be admitted, with the focus being on the weight to be accorded to the

evidence concerned instead".

The Court below could not undermine the appellant's evidence on that it was looking for better or

the best evidence.

The only person available to the appellant to prove her case was, as we see shortly, the

appellant - not the police traffic officer. The traffic officer was not present when the accident

occurred. The accident did not occur in the traffic officer's presence. The police traffic officer's

account of what happened would only be a recount of what others told when the traffic police

officer emerged on the scene. It would be the eye witnesses - the appellant, the driver of SA 4911

and the driver and passenger in TO 3883. The Court below thought, therefore, these were material

witnesses and should have been called by the appellant. They were, no doubt, material witnesses.

They were, however, not material witnesses to the appellant and, therefore, the appellant

strategically decided not to call them. Their evidence could not, in all fairness, have been assisting

the appellant's case and the appellant correctly not called them. Their exclusion, therefore, cannot

be a basis for discounting the appellant's evidence or case.

One must start from that a fact in issue can be established by any number of witnesses -

starting from one. Multiplicity of witnesses to establish a fact in issue is never necessitated or

encouraged. It is not encouraged because it can be dilatory and costly. As long as the appellant

gave evidence on the material facts of the accident - it was not necessary to call more witnesses.

The appellant's case could not be weakened for calling fewer or more witnesses. It can, of course

be undermined, by failure to call material witnesses - witnesses material to establishment of an

issue of fact.

The issue of fact here was how the accident occurred. The appellant was the one in the

front seat in SA 4911. The other passenger was at the back. The appellant, therefore, was the one

who could see more and better. The testimony of the passenger in the back would not have been

material. If anything, it could only have been confirmatory, but, as we see shortly, it was not

necessary, as a matter of law, to have the appellant's evidence corroborated. So that, concerning

those in SA 491 1, the material witness was the driver. The driver of SA 4911 is in the same position

as the driver and passenger (s) of TO 3883. They could not be witnesses of the appellant.

The duty to introduce material witnesses only arises for witnesses supporting your case and

does not apply to the defendant and prospective defendant's witnesses. It is quite clear from the

pleadings that the appellant meant to only include the insurance provider - not the driver of the

insured car -as provided in section 148 of the Road Traffic Act. The driver of SA 4911 was,

according to the appellant's pleading, the principal tortfeaser and, therefore, properly so a

defendant. The appellant having dropped the driver of SA 4911 from the suit, the respondent could

22

have joined the driver of SA 4911 as a party to the proceedings. The appellant could not, therefore,

call the driver -supposedly a defendant - a witness for her case. The driver could give adverse

evidence against her. The driver was, therefore, neither the appellant's witness nor a material

witness that the appellant had to call. This applies to the driver of TO 3883. The driver was

probably a joint tortfeaser and a possible defendant. The passenger(s) in TO 3883 would have

given adverse evidence to the appellant. They were, therefore, like all in SA 4911, neither the

appellant's witnesses nor material witnesses to the appellant's case. The respondent could have

applied to join the driver of TO 3883 as a party to the proceedings. The Court below, therefore,

could not undermine the appellant's testimony based on their absence on the appellant's witnesses

list. Their evidence, just like that of the traffic police officer could not, therefore, corroborate the

appellant's own evidence. That, however, is on the assumption that the appellant's evidence

needed corroboration.

The Court below could not, therefore, discount the appellant's viva voce evidence on the

pretext that it was not corroborated by the police traffic officer, the driver of the two cars involved

and supposedly hostile witnesses who the passengers could have become. There are cases where

at common law or under legislation where corroboration for certain evidence is required as a matter

of law or practice. This is not one. The Court below, could not, therefore, discredit the appellant's

stolid evidence on that it was not corroborated. It needed no corroboration. The appellant's viva

voce evidence stood alone and could not be tested on evidence not available to it from others.

The Court below did consider the appellant's evidence for what it was worth. The factual

determination of the Court below based on speculation and, as we have seen, tainted by the legal

pitfalls mentioned earlier. The Court below discredits the appellant's evidence on the swerving of

the car and the speed on that the appellant is not a driver and could not tell the speed or

maneuvering of the car. You need no expertise as a driver to know the speed of a car. In this case

the appellant informed the court that she checked the speedometer. The Court, on this further

evidence stated that, in the circumstances and at that late hour, the appellant could not have been

concentrating on any such finesse.

This conclusion can only be tested by the generalization on which it is based. There must

be, therefore, according to the Court below, a generalization that people at that late hour and those

circumstances cannot check a speedometer. There is no empirical or objective evidence for such a

generalization. The generalization is invalid and it cannot, therefore, be a basis of rejecting the

appellant's evidence. The evidence that the Court below had was that the driver of SA 4911 drove

at around 60-70 Km p h. This evidence was not contradicted,

Of course, matters of credibility are for the court below. Nowhere does the Court below

state that it found the appellant an incredible witness. Throughout the judgment, the Court below

concentrates on inferences from the evidence given. It does not find the appellant as incredible. It

rather concentrates on reasons why it came to conclude differently. It, therefore, rejects the

appellant's testimony for reasons, some factual and some legal. As seen, on both, the principles

are not as the Court below understood them. This Court, those reasons being in fact and in law,

unfounded, must evaluate the evidence and draw its own conclusions on the facts - and the law.

23

Generally, the appellant's testimony on the speed and swerving on to the other carriage

way was not weathered by cross-examination and was fortified in re-examination. The evidence

on the swerving of the car into the other lane was not even a matter of cross-examination - the

respondent, represented by Counsel, implicitly agreeing with the appellant's evidence on this

aspect. The appellant was cross-examined on the speed.

In the witness statement, the appellant stated the speed was 60 Kmph. She repeated this

in the cross-examination. In re-examination, the appellant put the speed at 60-70 kmph. She has

consistently stated the speed was 60 kmph. 70 kmph was introduced in re-examination and should

be rejected because the appellant re-examined on a matter not raised in cross-examination. At the

least. The Court below having recorded the evidence, should have asked the respondent whether

to cross-examine on the 70 kmph. Ts there inconsistency? Ts the appellant lying on the speed? I

would have thought so but for the statement in Parocjic v Parocjic [ 1959] All ER 1, 5-6, cited in

a judgment of the Court below Mahomed Nasim Sirdar v Republic ( 1968-70) 5 A LR (Mal) 212,

218:

It would not, I think, be right to approach it from the point of view that as she and

her witnesses have lied about one thing, the remainder of their evidence must be

equally unreliable. lt is not unknown for people, particularly simple and uneducated

people such as these are known to be, to fall into the error of lying in order to

improve an already good case.

According to the appellant, the driver of SA 4911 was driving at 60 Kmph when approaching the

corner on from Queen Elizabeth Central Hospital in the course of which the motor vehicle SA

491 I swerved to the right into the other carriageway where it hit another motor vehicle.

The questions for determination in the Court below (on proper evaluation of the evidence)

and in this Court on appeal are whether the driver of SA 49 I 1, as driver, owed the appellant a duty

of care, the driver of SA 4911 breached that duty, which breach caused injury to the appellant for

which the appellant suffered damages not of the nature of de minimis for which the appellant must

recover from the driver of SA 4911. If the answer is positive, the respondent's liability attaches

because of section 148 of the Road Traffic Act. There has not been an appeal from the Registrar's

decision on the preliminary point of law - that the respondent is liable.

There cannot be any doubt that a driver of a motor vehicle on a public road, as this one is

known to be, owes a duty of care to those whose manner of conducting the vehicle must affect -

that includes passengers in the motor vehicle. The scope of that duty is ably put in cases cited by

both sides in the Court below and this Court and I cannot improve on those erudite expositions.

The injuries the appellant sustained are extensive and some lifelong. The damages are not,

therefore, de minim is. There is no doubt that the injuries the appel !ant sustained were a result of

the accident. What has to be determined is whether the appellant in approaching the bend at 60

Kmph and/or swerving on the other carriageway was in breach of the duty of care owed the

appellant.

Approaching the bend at 60 kmph even it be at night may not be a breach of a duty of care,

even for passengers in the car to who a driver conducting a vehicle owes a duty. Certainly, to drive

24

on the opposite carriageway, even if it is just from temporary inattention, is breach of duty of care

and suffices to prove negligence. It is worse, if a driver crosses in another lane at 60 kmph. In R v

Evans' the Court said:

It is quite clear from reported cases that, if a man in fact adopts a manner of driving

which the jury thinks was dangerous to other road users in all the circumstances,

then on the issue of guilt it matters not whether he was deliberatively reckless,

careless, momentarily inattentive or doing his incompetent best.

This must, as it must be, a principle of general application to apply to civil liability as well.

In this the driver of SA 4911, when approaching a bend at Queen Elizabeth Central

Hospital, was taking a risk in driving in the other carriage way. The driver of SA 4911 was

taking odds with that there will be no car coming from the opposite direction. That was an

unreasonable risk. The chances, even at night, of another car being on the other carriage

way is one to one. Here, as it turn out to be, there was another car on the carriage way.

The driver of SA 4911 cannot, even if it was momentary inattention, escape liability. The

driver of SA 4911 was in breach of duty of care that the driver of a vehicle owes to

passengers and other road users.

The appeal should, therefore, be allowed with costs here and below. The Registrar of the

Court below should assess the damages

Kamanga, JA

Background

The appellant, on 12th September, 2011, commenced proceedings in the High Court

claiming damages for injuries sustained in a road accident. The facts of the matter, as contained in

the documents exchanged between the parties, may be summarized as follows:

In her statement of claim filed in the court below on 12th September, 2011, the appellant

averred that she was a passenger in vehicle registration number SA 4911 which, in the early hours

of 27th March, 2011, was involved in a collision with another vehicle registration number TO 3883

Land rover Station Wagon at or near Blantyre City Nursery along Mahatma Ghandi Road.

The appellant claimed that motor vehicle registration number SA 491 I was insured by the

respondent, and the appellant sued the respondent as insurer of the motor vehicle pursuant to

section 148 of the Road Traffic Act.

The appellant's statement of claim alleged that the respondent's insured driver "negligently

so drove motor vehicle registration number SA 49 I I; ... that upon reaching a place near or at

Blantyre City Nursery along Mahatma Ghandi Road he caused or permitted the same to hit motor

vehicle registration number TO 3883 Land Rover Station Wagon", and sets out the following

particulars of negligence: "(a) driving at excessive speedy in the circumstances; (b) failing to keep

any or any sufficient proper outlook; (c) failure to have any or any sufficient regard to other road

users; and (d) failing to stop, to slow down, to swerve or in any other way so as to manage or

control the motor vehicle so as to avoid the collision. ". In her statement of claim, the appellant

25

also alleged that as a result of the negligence of the respondent's insured driver of motor vehicle

registration number SA 4911, she sustained injuries, namely, "fracture of the left femur; head

injury; and bruises to the face" and, accordingly, claimed "damages for pain and suffering and

loss of amenities; damages for disfigurement; special damages (costs of medical report and police

report); and costs of the action.".

In the defence to the appellant's statement of claim, filed in court below 19th September,

2011, the respondent denied liability; the respondent averred that "if at all the accident occurred,

.. .[it} ... was caused by negligence of the driver of motor vehicle number TO 3883 Land Rover

Station Wagon", namely, failure by the driver of motor vehicle registration number TO 3883 "to

keep any proper out-look",· "to take adequate precautions when using the road",· "to heed the

presence of another motor vehicle on the . . . road"; and "to take any or any adequate measures to

avoid any collision. ". The respondent denied that the appellant had suffered any injuries and put

the appellant to strict proof thereof. The respondent also pleaded that its "liability, if any, is subject

to the owner of motor vehicle registration number SA 4911 . . . being found liable in respect of the

. . . accident", and further that the respondent's "liability, if any, is ... to indemnify the owner of the

motor vehicle . . . to the extent of the maximum liability contained in the contract of insurance

between itself and the owner of the motor vehicle. ".

On yct May, 2012, the respondent filed summons, pursuant to Order 14A r 1 of the Rules

of the Supreme Court, to dispose of the matter on a point of law. The gist of the respondent's

application was that the policy of insurance in respect of motor vehicle SA 4911 "did not cover or

extend cover to passengers"; that the appellant was travelling in the vehicle as a passenger and

was, therefore, not covered by the respondent's policy of insurance, and the appellant, therefore,

has no cause of action against the respondent. The respondent's application to dispose of the matter

on a point of law was determined on 17th January, 2014 and dismissed.

Evidence tendered in the court below

The record of appeal, on pages 102 to 106, indicates that the appellant was the only witness

during the hearing in the court below; that during the hearing the appellant adopted her witness

statement dated 18th August, 2011; and that the witness statement was admitted in evidence and

marked as "exhibit PWl ". The appellant's witness statement reads as follows-

"], ANITA NANCHINGA state as follows­

]. I am the complainant in this action. 2. I recall that I was involved in a road accident on 27 March 2011 at Blantyre City

Nursery along Mahatma Ghandi Road3. I was a passenger in motor vehicle registration number SA 4911 Toyota Camry

driven by Mr Patrick Mkhumba. The motor vehicle was travelling from the QueenElizabeth Central Hospital heading to Sache East. On arrival at Blantyre CityNursery near JT's Club opposite College of Medicine Sports Complex the motorvehicle collided with motor vehicle registration number TO 3883 Land RoverStation Wagon which was coming from the opposite direction. The accidentoccurred around 2. 00 am.

26

4. The motor vehicle in which I was a passenger influenced the accident as it wastravelling at an excessive speed and left its lane into the lane of the oncomingmotor vehicle. I attach hereto a copy of the police report and it is marked "AN]".

5. As a result of the accident I suffered the following injuries- (i) fracture of the leftfemur; (ii) bruises on the face; I lost consciousness on the accident spot.

6. I was taken to Queen Elizabeth Central Hospital for treatment in myunconsciousness state. I regained consciousness at the hospital. I was admittedfrom 27th March to ?th April, 2011. Thereafter I attended the hospital as an out­patient. I attach hereto a copy of the medical report and [it} is marked "AN2 ".

7. The injuries have since healed. I, however, still experience residual pains on theleg when walking.

8. I have not been compensated for the injuries that I sustained. I have, therefore,instructed Messrs Golden & Law to claim compensation on my behalf.

9. This statement is true to the best of my knowledge, information and belief

Dated this 18 day of August, 201 I Signed

ANITA NANCHINGA ".

The record of appeal, on pages I 05 and I 06, indicates that the "pol ice report" and the

medical report referred to in the appellant's witness statement were tendered and admitted in

evidence, and marked exhibit "PW2" and exhibit "PW3", respectively. The record of appeal, on

pages I 07 to 117, also indicates that the appellant was cross-examined by counsel for the

respondent in relation to the accident, and more specifically on the "police report" and the medical

report. The court below also sought clarification from the appellant regarding certain aspects of

her testimony.

Determination by the court below

In a judgment delivered on 25 th August, 2014, the court below, among other things,

observed that "at the trial to determine liability on personal injuries suffered by the [ appellant},

the [respondent] did not offer any evidence. Therefore, the matter was determined based on the

evidence of the [appellant} and other material on record relevant to the issue". The court below,

on page 3 of its judgment, also held that the appellant had not "discharged her duty to prove her

assertions that the accident did take place and that it was the [respondent's} insured who was at

fault" and, accordingly, dismissed the appellant's action with costs.

For reasons that may become clearer later in this judgment, it is, perhaps, useful to quote

the following relevant part of the judgment of the court below-

"Jn the instant case, the plaintiff did not produce the police officer who drew up and

signed the police abstract. This particular police officer was not invited to identify the

motor vehicle and make a linkage between the vehicle named in the police abstract and

the vehicle that was involved in the alleged accident. The police officer who witnessed

or visited the scene of the accident was not called as a witness. The traffic police officer

is specially mandated may be even trained to analyse road accidents and give expert

27

opinion on the cause or causers of accidents. The omission on the part the plaintiff to

produce such crucial witness in a matter of this nature may lead to some suspicion that

perhaps the plaintiff is suppressing some material fact. Especially in this case where

there is no evidence that any attempt was made to acquire the expert opinion or

testimony of a traffic officer in possession of first hand information about the accident.

Further to the absence of the expert witness in the form of a traffic officer, the two

respective drivers referred to by the plaintiff were not invited to give testimony as to

what actually happened. The narration of the plaintiff as to the cause of the accident is

not supported by expert evidence considering that there is no proof that the plaintiff

was a driver or that she had driven a vehicle before in order for her know with precision

the speed at which the vehicle was going and whether or not the accident took place

and who caused it. Even allowing that the plaintiff had personal knowledge of how a

motor vehicle works, it is hard to believe that at this hour precisely 2. 00 am the plaintiff's eyes were glued to the speedometer just at the time of impact while at the

same moment recording the exact movements of both motor vehicles.

Finding

It is on the basis of the above observations that this action must fail. The Court finds

that the plaintiff has not discharged her duty to prove her assertions that the accident

did take place and that it was the defendant's insured who was at fault.

Obiter This court find it necessary to stress the observations made in cases of similar nature by courts and members of the public in general that we are living in "an era in which motor insurance industry is vulnerable to unscrupulous claimants" see: Enock v Macheso & Another Civil Cause (Personal Injury) Number 583 of2012 ... This caution places a duty on bona fide litigants to summon and adduce best evidence in order to explain ambiguities that may be present in a case of this nature. This is because this court acknowledges that there are many bona fide personal injury claimants who genuinely require and deserve assistance of law.".

The appellant's appeal

On 4th September, 2014, the Appellant, filed a notice of appeal against the judgment of the

court below; the notice of appeal was subsequently amended on J i th February, 2016. The grounds

of appeal, as set out in the notice of appeal, are as follows-

"(i) the trial Judge erred in law in declining to find liability in favour of the [appellant} on the ground that the traffic officer and/or the drivers of the motor vehicles which were involved in a collision were not called to testify on the cause of the accident; (ii) the learned trial Judge erred at law in treating what would have come from a trafficofficer as expert evidence and the best evidence to prove the [appellant's} case;(iii) the trial Judge erred in law in disregarding the evidence of the plaintiff on thecause of the accident before arriving at her decision on the aspect of liability;(iv) the trial Judge erred in law in dismissing the [appellant's} case withoutconsidering the totality of her evidence;

28

(v) the trial Judge erred in law in holding that the police report was inadmissibleevidence when the aspect of inadmissibility was not in issue as it had not arisen duringthe trial;(vi) the trial Judge erred in law to disregard the evidence of the police report on theground that it was hearsay evidence when the same was not objected to during the trail;(vii) the trial Judge erred in law in disregarding the contents of the police report as the[Appellant] had adopted the contents thereof as part of her evidence viva voce;(viii) the trial Judge erred in law in deciding on the aspect of admissibility of the policereport without first hearing arguments of the parties on the same; and(ix) the judgment is against the weight of the evidence. ".

Based on the grounds of appeal, the Appellant seeks: "(a) an order quashing the learned

Judge's holding that the best evidence to prove the [appellant's J case was the evidence of a traffic

officer; (b) an order quashing the Judge's finding that the [ appellant} had failed to prove her case

on the balance of probabilities; (c) an order reversing the judgment of the [court below J on the

aspect of liability; (d) an order that judgment be entered in favour of the [appellant}; and (e) an

order that the [respondent} do bear the costs of this appeal.".

Submissions on behalf of the Appellant

During the hearing of the appeal herein on 13 th December, 2016, counsel for the appellant

adopted the skeleton arguments that had been filed on 4th March, 2016. Counsel for the appellant

did not make submissions on each of the grounds of appeal in the order in which they appear in

notice of appeal; but instead made submissions under various heads as follows-

The trial Judge erred in law in excluding the evidence of the police report on the ground that it

was inadmissible on the basis of the hearsay rule: and the trial Judge erred in law in disregarding

the contents of the police report as the {Appellant 7 had adopted the contents thereof as part of her

evidence viva voce {grounds (v) and (vii) ofthe appeall

Counsel for the appellant acknowledges the rule against hearsay evidence, the effect of

which is to prohibit written statements of persons, other than the witness who is giving evidence,

being related to court as evidence of the truth of that which is asserted in the statement. However,

counsel for the appellant refers this Court to the case of Subramaniam v Public Prosecutor [1956]

l WLR 965 in which it was held that-

" . . . Evidence of a statement made to a witness by a person who is not himself called as

a witness may or may not be hearsay. It is hearsay and inadmissible when the object of

the evidence is to establish the truth of what is contained in the statement. It is not

hearsay and is admissible when it is proposed to establish by evidence, not the truth of

the statement, but the fact that it was made ... ".

Counsel for the appellant referred this Court to pages 53 to 62 of the record of appeal and

argues and submits that the abstract of the police report, like the medical report, was tendered and

admitted in evidence as part of the appellant's written statement. Counsel for the appellant further

referred this Court to pages 60 to 61 and pages 107 to 116 of the record of appeal and argues and

submits that, on cross examination, the appellant was in agreement with the content of the abstract

29

of the police report, and that whatever was contained in the abstract of the police report was

adopted and became part of the appellant's evidence. Counsel for the appellant, accordingly,

argues and submits that the abstract of the police report was duly admitted during the trial, and that

it was not open to the court below to exclude the abstract police report on the basis that it was

inadmissible; that the issue of the admissibility or inadmissibility of the abstract of the police report

should have resolved at the trial, not after the close of the case.

The trial Judge erred in law in disregarding the police report on the ground that it was hearsay

evidence when there was no ob;ection to its admissibility during the trial (ground (vi) of the

appeall

Counsel for the appellant builds on the preceding arguments and submissions, and argues

and submits that it is for parties, not the court below, to raise objection to the admissibility of any

document; that the duty of the court below was to rule on any objection that may be raised in

relation to the admissibility of a document; and that the respondent was duly represented during

the trial in the court below and did not raise any objection to the admissibility of the police report.

Consequently, the police report was admissible. In support of this submission counsel for the

appellant cited the following cases-

Gunde v Msiska (1961-63) 2 ALR (Mal) 465 in which Bolt Ag J at p. 471 observed as

follows-

"... It is hardly the function of the court in a civil matter to refuse to admit any

particular piece of evidence; the objection must come from the party against whom it

is given ... ".

Stirland v DPP [1944] AC 315 in which Viscount Simon, at p. 328, observed as follows­

" ... No doubt, ... the court must be careful in allowing an appeal on the ground of

reception inadmissible evidence when no objection has been made at the trial by the

prisoner's counsel. The failure by counsel to object may have a bearing on the question

whether the accused was really prejudiced. It is not proper to use counsel's discretion

not to raise an objection at the time in order to preserve a ground of objection for

possible .. "; and

Jackson Chimkango v Rep [2009] MLR 254 in which Tambala J observed-

"... Counsel who appeared on behalf of the appellant did not raise an objection to the

reception of the hearsay evidence. Learned counsel must have taken the view that such

evidence did not prejudice the case for the appellant. The position at law is that it is

the duty of Counsel to raise an objection relating to the improper admission of evidence

promptly during the trial and that it wrong practice for counsel to remain silent when

evidence is wrongly admitted in order to preserve a possible ground of appeal . ... We

would come to a clear conclusion that there is no substance or merit in the arguments

advanced in support of the issue of improper reception of hearsay evidence . ... ".

30

It is pertinent to observe that in both Stir/and v DP P and Jackson Chimkango v Rep counsel

failed to object to the admission of hearsay evidence but subsequently sought to appeal against the

admission of such evidence.

Counsel for the appellant, accordingly, argues and submits that the court below erred in

law in treating the abstract police report as hearsay and inadmissible when counsel for the

Respondent did not object to its admissibility; that by not objecting to the admissibility of the

abstract police report, the presumption is that the respondent had no issue with the evidence in the

abstract police report; and that the court below "descended into an arena that is the exclusive

preserve of counsel.".

The trial Judge erred in law in deciding on the aspect of admissibility of the police report without

first hearing arguments of the parties on the same {ground (viii) of the appeall

Counsel for the appellant argues and submits that the court below should have invited and

heard the parties before deciding on the admissibility of the abstract police report and that, in

effect, the failure by the court below to do so occasioned a miscarriage of justice. In support of

this argument and submission, counsel for the appellant cites Michael Kumalakwaanthu t/a

Accurate Tiles & Building Centre v Manica Malawi Limited MSCA Civil Appeal No 57 of 2014

in which Mwaungulu JA, in a dissenting judgment, held that-

" . . . A court, moreover has power to raise a matter suo motu if it is necessary to

determine the matter between the parties provided that the parties, when called upon,

address the court on the matter; failure to address the court on the matter may be a

miscarriage of justice ..... more especially the one adversely affected. . . . The court will

reverse a decision based on a matter taken by the court suo motu if the matter

substantial and has occasioned a failure of justice. . . . Where the matter raised suo

motu goes to the root of the matter parties much be heard on the matter ... ".

Counsel for the appellant further argues and submits that the admissibility of police reports,

being public documents, is an exception to the hearsay rule. In support of this submission counsel

for the appellant cited the following cases-

Olive Mtaila v National Bus Company & NICO General Insurance Co. Ltd Personal lnjury

Cause No. 295 of 2011 in which Mwaungulu J, as he then was, held that -

" . . . Police reports are generally admissible under the exception to the rule against

hearsay in that they are made in the regular course of business ... That police reports

are admissible seems settled in the very persuasive decision in this court, the decision

of the England and Wales Court of Appeal in Hoyle v Rodgers & Another [20 l 4]EWCA

Civ 257 delivered on 15 January 2014. Lord Justice Clarke is clear on the principles

on which reports, including police reports, are admissible in the court of law: "In so

far as the report consists of statements or reports statements of fact, it is, prima facie,

admissible. It is immaterial that it constitutes hearsay, whether primary or

secondary ... ". ".

31

Sadick Jimu v NICO General Insurance Co, Ltd High Court (Principal Registry) Civil

Cause No. 984 of 2007 in which Manda J held that-

" ... I must of course point out that medical and police reports, as those being tendered in personal injury cases, are public documents. This is in my view because these documents are made by public officers acting in discharge of a strict duty to enquire

into, and satisfy themselves as to the truth of facts contained in those documents

[see:White v Taylor [1969] 1 Ch 150]. In this regard, it must also be noted that there is no strict requirement for one to have personal knowledge of the facts recorded. This

is on account of the fact that there is a duty on the part of public officers to record facts which are true (see: R v Halpin [1975} QB 907).

What is recorded in the medical and police reports are supposed to be findings which are done by a medical officer upon examining the person injured, or a police officer

upon investigating the circumstances surrounding an accident. Both the medical officer

and policeman record their findings in reports, which reports are made under the public authority of the Malawi Police Service and the Ministry of Health. In view of

this I must find that these reports are exempt from the rule against hearsay, and that they fall within the common law exceptions to the rule against hearsay. Further it is the view of this court that within the context of Malawi, these documents may be justified on the grounds of reliability and convenience . ... ".

The trial Judge erred in law in dismissing the case on ground that (i) the appellant did not call the

traffic police officer and the drivers of two motor vehicles,· 0i) the best evidence to prove the appellant's case would have been that of the traffic police officer {ground (i) ofthe appeall

Counsel for the appellant argues and submits that the court below was of the view that the

expert evidence of the traffic police officer would have been the best evidence on the cause of the

accident, and further that the traffic police officer would have given first-hand information about

the accident. Counsel for the appellant faults the view expressed by the court below by arguing

and submitting that the duty of an "expert" is merely to assist the court on matters within his or

her expertise; that it is not competent for an expert witness to express an opinion upon any issues,

whether law or fact, which the court has to determine. In support of this argument and submission,

Counsel for the Appellant cites the following case authorities -

Olive Mtaila v National Bus Company & NICO General Insurance in which Mwaungulu

J, as he was then, held that-

" ... Most police reports [are] in this texture in that, in many respects, together with findings of fact, express opinions on matters which, not based on technical expertise,

must be decided by the courts as a trial fact. The police report tendered here is no exception. Of course the police officer in question, in drawing the conclusions which he drew, based on statements of others including the conductor, present at the scene of

accident. It could, therefore, be true that the accident occurred when the pedestrian

who died on the spot crossed from the left to right of the road. The police officer, however, is delving in an area which is the court's, in expressing what, for all purposes,

32

is an opinion about what caused the accident. In this respect, such opinion, unless

expressed by a police officer who is an expert, is irrelevant and, therefore, inadmissible

to prove that the National Bus Company's driver did not cause the accident. . . . The

police officer is not an expert and does not become one simply because, in the nature

of things, the police officer has to investigate traffic accidents or other crimes.".

Chipiliro Banda v Southern Bottlers Limited MSCA Civil Appeal No. 7 of 2013 in which

Chikopa JA observed as follows-

" . . . Firstly let us say that whereas we agree that Dr Dzama la la might have called as

some kind of expert witness, the law is not to the effect that his testimony should be

taken as the gospel truth. It will, like other testimony, be subject to review just so that

the court can ascertain that his conclusions stand up to scrutiny. Where appropriate,

his testimony may be disregarded. Much the same is true about sole testimony. It

matters not in our judgment that a witness's evidence is is the only evidence. It matters

that having subjected sole testimony to review a trial court is of the view that such

testimony or conclusions arising therefrom are incapable of belief . . . ".

Counsel for the appellant argues and submits that in this matter the court below was

required to determine whether, based on the evidence before it, an accident occurred on 27th March,

2011 and, if so, who was to blame for the accident; that by declining to assess the evidence because

there was no opinion of a traffic police officer, the court below abdicated its duty. Furthermore, it

is argued and submitted that the suggestion or inference that a traffic police officer is trained to

give expert opinion on the cause of the accident is not supported by law; that there is no evidence

before the court that a traffic police officer was present at the time of the occurrence of the accident;

the evidence of the traffic police officer could only have been "first-hand information" if the traffic

police officer was present at the time of the occurrence of the accident. Counsel for the appellant

also faults the court below for suggesting that the drivers of the two vehicles involved in the

accident should have been called as witnesses; and argues and submits that the appellant herself

had first-hand information on how the accident. Instead it is argued and submitted that the evidence

of the appellant in the court below was direct, and the court below should have proceeded to assess

that evidence without requiring the evidence of the drivers of the motor vehicles involved in the

accident.

Judgment against the weight of the evidence and the court below dismissing the plaintiff's case

without considering the totality of the evidence [grounds (iii), (iv) and (ix) of the appeall

Counsel for the appellant consolidated grounds (iii) (iv) and (ix) of the appeal, and argued

and submitted that the appellant gave evidence on how the accident happened; that in her witness

statement the appellant stated that the accident happened near TJ's junction opposite College of

Medicine Sports Complex; that the vehicle in which she was a passenger collided with another

vehicle; and that the accident was influenced by vehicle registration number SA4911 in which she

a passenger which was travelling at excessive speed, and was travelling in the lane of the motor

vehicle from the opposite side. It is argued and submitted that the appellant's evidence was not

controverted; that the respondent did not adduce any evidence to contradict the appellant's

33

evidence; and that on the basis of the appellant's uncontroverted evidence the court below should

have liability in favour of the appellant. It is further argued and submitted that if the court below

did not believe or rejected the appellant's evidence with respect to the occurrence of the accident,

then the court below was required to give plausible reasons; and the appellant cites Mahomed v

Leyland Motors Corporation (Mw) Ltd [1990] 13 MLR 204.

Counsel for the appellant faults the court below for rejecting the appellant's evidence

regarding whether the accident occurred, and who was to blame for the accident, and argues and

submits that the fact that the accident occurred at 2.00 am does not mean that the appellant was

not able to observe how the motor vehicle, in which she was a passenger, was moving. Counsel

for the appellant referred this Court to pages 109 to 111 and 117 to 119 of the record of appeal,

and emphasizes the appellant's testimony that the vehicle was speeding and had gone into the

wrong lane. Accordingly, counsel for the appellant argues and submits that the court below

"wrongly excluded the Appellant's evidence.".

Counsel for the appellant also argues and submits that the police report, which the court

below wrongly excluded from the evidence, supports and compliments the appellant's evidence.

It is contended that the appellant had duly adopted the contents of the police report during the trial.

Counsel for the appellant further refers to page 116 of the record of appeal and submits that the

appellant reaffirmed the adoption of the contents of the police report during her cross examination.

Counsel for the appellant further argues and submits that the court below should have

considered the evidence in the Appellant's witness statement, the police report as well as the

responses solicited during cross-examination and re-examination; and that "on the totality of the

evidence ... the appellant proved her case on the balance of probabilities.".

Submissions on behalf of the respondent

During the hearing of the appeal herein on 13th December, 2016, counsel for the respondent

adopted the skeleton arguments that had been filed on 27th May, 2016, and made submissions

under various heads as follows-

Whether the Appellant failed to call material witnesses

Counsel for the respondent points out that the appellant failed to call as witnesses the traffic

police officer who prepared the abstract police report and the drivers of the motor vehicles that

were involved in the accident to testify on the cause of the accident. It is argued and submitted

that, on the basis of the failure by the appellant to call these witnesses, an adverse inference should

be drawn that these witnesses would have provided testimony that would have contradicted the

appellant's case. In support of this argument and submission counsel for the respondent cites as

case authority NBS Bank Ltd v BP Malawi Ltd Commercial Cause No. 12 of 2007 and Maonga

and others v Blantyre Print and Publishing Ltd ( 1991) 14 MLR 240. In the alternative, counsel for

the respondent argues and submits that, based on the failure by the appellant to call these witness,

an adverse inference should be drawn that the appellant's claim is fictitious. In support of this

submission and argument counsel for the respondent cites as case authority Leyland Motor

Corporation Ltd v Mohamed Civil Cause No. 240 of 1983.

34

Counsel for the respondent also faults the appellant for not calling as witnesses the traffic

police officer and the two drivers of the vehicles involved in the accident and argues and submits

that, based on the appellant's failure to call these witnesses, the court below was justified in holding

that the appellant had failed to discharge the burden of proof on the balance of possibilities on

account of omission to summon material witnesses.

Whether a police abstract report written by a person other than the witness testifying is hearsay

Counsel for the respondent refers to the rule against hearsay evidence - "a statement written

or made orally by a person other than the witness testifying is hearsay and, therefore,

inadmissible", and acknowledges that the submission of public documents are exempted under the

hearsay rule. However, counsel for the respondent cites Irish Society v Bishop of Derry [1846] 12

Cl & F 641 in which a public document was defined "as a document that is made for the purpose

of the public making use of it, and being able to refer to it. That it should be made for the purpose

of being kept public, so that persons concerned with in it may have access to it afterwards".

Counsel for the respondent cites Patrick Khaiya v United General Insurance Co. Ltd

Personal Injury Cause No. 34 of 2013 and agrues and submits that for a document to qualify as

an admissible public record, it must satisfy four requirements, namely, "it must be available for

public inspection; the person compiling the document must be under a public duty to satisfy

himself [ or herself] of the truth of the statement; it must concern a public matter; and the document

must have been created to be permanent, not temporary".

Counsel for the respondent points out that the abstract police report exhibited by the

appellant in this matter expressly states, under the heading "PARTICULARS OF ROAD

ACCIDENT" that "this is not a copy of a police report but merely an abstract of such particulars

as may be useful to persons who may be concerned"; that, under the heading "MEMORANDUM",

the abstract police report states "Police reports, books and records are confidential and privileged

and the Inspector General is unable to accede to any request for copies of such documents and

further that such abstracts are not, and do not purport to be actual copies of reports. ".

Accordingly, counsel for the respondent argues and submits that the abstract police report

exhibited and relied upon by the appellant does not concern a public matter; is not a permanent

document; is not available for public inspection; and is not a public document.

Counsel for the respondent argues and submits that police reports do not qualify to be

admissible public [record] and as such are only admissible to show that they were made, but not

as to the truth of their contents in the absence of the owner thereof testifying in court; and counsel

for the respondent cites several High Court case authorities in support of this argument and

submission, including: Patrick Khaiya v United General Insurance Co. Ltd (supra) in which the

court held that a police report does not qualify to be admissible as a "public record" and as such is

only admissible to show that it was made but not as to the truth of its contents if the author thereof

does not testify in court; Sainani Nthara and others v Real Insurance Company Ltd Personal

Injury Claim No 564of 2011 in which the plaintiffs tendered a police report as evidence connecting

the defendant as the insurer of the motor vehicle involved in the accident; the plaintiffs' claim was

dismissed on the basis that the police report was tendered by a person who did not prepare it, and

35

was, therefore, inadmissible, and no weight was attached to it; Janet Justin v Prime Insurance Co.

Ltd Civil Cause No. 74 of 2015 in which the court following a decision in Andrew Jim v Prime

Insurance Ltd Civil Cause No. 1015 of 2013 held that a police abstract report is not admissible to

prove the veracity of its contents because it was not tendered in court by its author; and Joseph

Chilomo v Prime Insurance Ltd Civil Cause No. 564 of2011 in which the court held that litigants

must prove the cause of an accident by evidence admissible in court not inadmissible evidence,

such as the contents of a police abstract report.

Counsel for the respondent, accordingly, argues and submits that the contents of the

abstract report tendered in the court below by the appellant are not admissible, and no weight

should be attached to the report, in so far as they try to show that the respondent's insured driver

negligently caused the accident; and further that the court below was justified in holding that the

contents of the report tendered by the appellant is "hearsay and inadmissible".

Counsel for the respondent argues and submits that the decisions in Olive Mtaila v National

Bus Company Ltd and Sadick Jimu v NICO General Insurance Company Ltd, which held that

police reports are generally admissible under the exception to the rule against hearsay, were

decided per incuriam; and that those cases did not take into account the relevant binding

precedents and the fact that an abstract report of the police is not a police report.

In another breath counsel for the respondent argues and submits that the cases of Olive

Mtaila v National Bus Company Ltd and Sadick Jimu v NICO General Insurance Company Ltd

"are distinguishable from the present case on the basis that in the present case the appellant

tendered in court an abstract report of the police, not the police report"; that the abstract police

report was a private or personal communication between the Inspector General and the Appellant

following a request by the appellant. In support of this argument and submission counsel for the

respondent cites the following case authorities: Haji Chrissie v New Building Society Bank Civil

Cause No. 2707 of 2004 in which Twea J, as he then was highlighted the distinction between "a

police report" and "a police report abstract"; and Victoria Matemba v Martin Banda & Others

Personal Injury Cause No. 1750 of 2010 in which Mbvundula J held that an abstract police report

is a private or personal communication between the office of the Inspector General and the person

to whom it is addressed.

Counsel for the respondent, accordingly, argues and submits that the court below was

justified in dismissing the appellant's claim on the basis that she did not call as a witness the traffic

police officer who drew up and signed the "police report" regarding the accident which, it is

claimed, is not admissible under the exception to the rule against hearsay.

Whether inadmissible evidence not obiected to upon its tender becomes admissible

In relation to the admission of the abstract police report, counsel for the respondent argues

and submits that the report is admissible only to the extent that it was made, and not to the veracity

of its contents because the author thereof was not called to testify as a witness. Counsel for the

respondent takes issue with the position advanced, on behalf of the appellant, namely, that because

no objection was raised by the respondent in relation to the tendering of the report in the court

below, the report, including the veracity of the contents is admissible.

36

Counsel for the Respondent argues and submits that "the fact that the court [below] did not

admit the abstract report as to the truthfulness of its contents does not raise any new pleading or

fact which requires the parties to be held, let alone a requirement for an objection . ... "; that "what

the court below did in the circumstances is within its mandate, which is to ensure that it takes in

account only legally relevant facts and the prescriptions of the law" in accordance with section 9

of the Constitution.

Counsel for the respondent argues and submits that the case authorities Stir/and v DPP,

Jackson Chimkango v Repubic and Day v Reginam, which were cited on behalf of the appellant in

support of the contention that the contents of the abstract police report are admissible on the basis

that the report was not objected at the time it was being tendered in the court below, are not

applicable in the present matter. Counsel for the respondent argues and submits that these cases

relate to criminal matters where the standard of proof is beyond reasonable doubt and are,

therefore, not applicable in this matter. Counsel for the respondent further argues and submits that

in all those cases the appellants failed to object to the tendering of evidence in the course of the

trial and subsequently grounded an appeal on the basis of the admission of the evidence which

they failed to object; that the appellants in those cases "preserved the ground of objection for a

possible appeal"; consequently, those cases are not applicable in this matter.

Counsel for the respondent argues and submits that where evidence tendered by a party is

inadmissible, as is the case in the present matter, there is on obligation on the other party to object

to it being tendered or to rebut the evidence; that the contents of the abstract police report exhibited

by the appellant are inadmissible and no weight should be attached thereto for the purposes of

establishing whether the respondent's insured driver was to blame for the accident; that even if the

abstract police report was adopted by the appellant, she was not the author of the report, and the

court below was, consequently, "justified in not admitting the evidence of the abstract police report

... even if the same was not objected to at the time it was tendered".

Whether the court below failed to consider any of the Appellant's evidence

With respect to the ground of appeal by the Appellant that the judgment of the court below

is against the weight of the evidence, particularly the uncontroverted evidence of the appellant

regarding the occurrence of the accident and who was to blame for the occurrence of the accident,

counsel for the respondent argues and submits that the appellant had not discharged the burden on

her, on a balance of probabilities, to prove the case against the respondent.

Counsel for the respondent argues and submits that the standard of proof required in civil

cases "is expressed as proof on the balance of probabilities; that if the evidence is such that a

tribunal can say: we think it more probable than not, the burden is discharged; but if the

probabilities are equal then the burden is not discharged"; and in support of this view counsel for

the respondent cites as case authority Kachiwanda v Eastern Produce Malawi Ltd. [2008] MLR

183.

Counsel for the respondent further argues and submits that whether the evidence in a case

is controverted or not, the burden of proof rests on the party (the plaintiff or the defendant) who

substantially asserts the affirmative of the issue; that "the burden of proof is fixed at the beginning

37

of the trial ... [remains} unchanged throughout the trial [and] it never shifts in any circumstances

whatsoever.". In support of this view counsel for the respondent cites as case authorities Haji

Chrissie v New Building Society Bank Civil Cause No. 144 of 2004; and Kachiwanda Eastern

Produce Malawi Ltd. (supra).

Counsel for the respondent cites Blyth v Birmingham Water Works Company (1856) Ex

781 in which at p.784 negligence was defined as "the omission to do something which a reasonable

man guided upon those considerations which ordinarily regulate the conduct of human affairs

would do ... something which a prudent and reasonable man would not do. ". Counsel for the

respondent also cites Goliati Mwase v Raphael Chimbala and Cilcon Civil Cause No. 144 of2009

and submits that the tort of negligence has four requirements, namely, "the existence of a duty of

care [to] which the law attaches liability [for] carelessness; breach of the duty of care by the

defendant; a causal connection between the defendant's careless conduct and the damage; and

the particular kind of damage to the particular claimant that is not so unforeseeable as to be too

remote". Based on the foregoing, counsel for the respondent argues and submits that in this matter

the burden of proof is on the Appellant to adduce "evidence of facts on which [she bases her]

claim, [and} from which negligence may be reasonably inferred, and [from] which, in fact, it has

been inferred"; and in support of this submission counsel for the respondent cites Juma v Mandala

Motors Ltd. (1993) 16 (1) MLR 139. It is argued and submitted that in this matter, the appellant

must "clearly by way of evidence bring out circumstances of failure to control the vehicle; [that}

it is not in all circumstances that an accident occurs that a driver is at fault or fails to control the

vehicle; circumstances may be such that it was impossible to suddenly control it. Circumstances

of failure to control the vehicle should come out clearly by way of evidence."; and in support of

this submission counsel for the respondent cites Veronica Malipa v Mussa Kalichero & Prime

Insurance Company Ltd. Personal Injury Case No. 19 of 2013.

Counsel for the respondent refers to the assertion made, on behalf of the appellant, that the

respondent had not adduced any evidence to contradict the appellant's version on how the accident

happened, and argues and submits that the appellant was thereby, in effect, shifting the burden of

proof on the respondent to show that the respondent's insured driver was not negligent. Counsel

for the respondent also disputes the assertion, on behalf of the appellant, that the court below failed

to consider the appellant's testimony and, in effect, argues and submits that based on her testimony

in the court below, the appel !ant had not discharged the burden of proof to show that "the accident

did take place, and that it was the respondent's insured who was at fault".

Issues for determination

Although the appellant has filed a number of grounds of appeal against the judgment of the

court below, the principal issue for determination in this appeal is whether the accident did take

place and, if so, whether the respondent's insured was to blame for the accident. The appellant's

grounds of appeal against the judgment of the court below and the appellant's arguments and

submission in support of the grounds of appeal, as well as the respondent's arguments and

submissions against the appeal of the judgment of the court below, all revolve around the issue

whether the accident did take place and, if so, whether the respondent's insured was to blame for

the accident; and at the heart of the case for both parties is the issue of whether the abstract of the

38

police report and the medical report are admissible in this matter to prove or to substantiate the

appellant's case .

It is pertinent to state from the outset that this appeal comes before this Court by way of

hearing (see: Chimanda v Maldeco Fisheries Ltd [1993] 16 (2) MLR 493 (SCA). We will ask

ourselves whether, on the facts of the case in the court below and the law, we would have come to

the same conclusion as the court below; and "if the answer be in the positive in all material aspects,

the appeal must fail. If, however, the answer is negative in the appeal will succeed wholly or to

the extent of the negative responses. It is also pertinent to reiterate at the outset that this is a civil

matter, and the burden of prove is on the appellant to show, on a balance of probabilities, that the

accident did take place and that the respondent's insured was to blame for the accident.

Whether the accident did take place

In relation to whether the accident occurred, the court below held that " ... the Appellant

did not produce the police officer who drew up and signed the police abstract ... this particular

police officer was not invited to identify the motor vehicle and make a linkage between the vehicle

named in the police abstract and the vehicle that was involved in the alleged accident . . . the police

officer who witnessed or visited the scene of the accident was not called as a witness... The

omission on the part the [Appellant] to produce such crucial witness in a matter of this nature may

lead to some suspicion that perhaps the [appellant] is suppressing some material fact ... especially

in this case where there is no evidence that any attempt was made to acquire the expert opinion or

testimony of a traffic officer in possession of first hand information about the accident".

The court below seems to have taken the view that because the traffic police officer, who

visited the scene of the accident and drew up and signed the abstract police report, was not called

as witness, there was some suspicion that the appellant was suppressing some material facts; but

the court below avoided to make a specific finding on whether, having regard to all the evidence

before it, the accident did in fact occur. Instead, the court below found "it necessary to stress the

observations made in cases of similar nature by courts and members of the public in general that

we are living in "an era in which motor insurance industry is vulnerable to unscrupulous

claimants", and cautioned bona fide litigants to summon and adduce best evidence in order to

explain ambiguities that may be present in a case of this nature, and the court below thereby

insinuated that the accident did not happen. The court below, on the basis of the observation that

the appellant had failed to call the police officer as a witness, also found that the appellant had not

discharged her duty to prove her assertion that the accident did take place;

While we agree that it may be desirable in cases of road traffic accidents to call as witness

the traffic police officer who visited the scene of the accident and drew up the police report, for

the purpose of proving a claim grounded on a road accident, any other relevant evidence on record

should not be ignored. Indeed, the evidence of a police officer who visits the scene of an accident

after the accident has occurred may not be the best evidence that the accident occurred; and the

evidence of a person actually involved in accident should not be ignored, unless there are plausible

reasons for doing so.

39

In the present the case the court record indicates that the appellant's witness statement was

tendered in evidence as exhibit PW 1. In her witness statement the appellant, among other things,

states that she "was involved in a road accident on 27 March 2011 at Blantyre City Nursery along

Mahatma Ghandi Road"; that she was "a passenger in motor vehicle registration number SA 4911

Toyota Camry driven by Mr Patrick Mkhumba; that "the motor vehicle was travelling from the

Queen Elizabeth Central Hospital heading to Sache East"; that "on arrival at Blantyre City

Nursery near JT's Club opposite College of Medicine Sports Complex the motor vehicle collided

with motor vehicle registration number TO 3883 Land Rover Station Wagon which was coming

from the opposite direction"; and that "the accident occurred around 2. 00 am". The cross­

examination of the appellant by counsel for respondent, and the answers to questions put to the

appellant by the court below during the hearing, (pages 107 to 111 of the record of appeal) do not

seem to sufficiently cast doubt on the question whether the accident occurred, but seem to raise

the issue of liability, namely, who was to blame for the accident.

We are unable to agree with the finding by the court below that the appellant had not proved

her assertion that the accident take place principally because the police officer who visited the

scene of the accident and drew up the "abstract police report" was not called by the Appellant to

testify. We do not share the view that it is necessary in every case to call a traffic police officer

who visited the scene of a road traffic accident to prove that the accident occurred.

Furthermore, in light of the testimony of the appellant in the court below, we do not share

the view, expressed by the court below and counsel for the respondent, that an adverse inference

should be drawn from the omission by the appellant to call as a witness the police traffic officer

who visited the scene of the accident and prepared the abstract police report. We certainly do not

share the view that, based on the omission by the appellant to call the police traffic officer as a

witness, an inference should be drawn that the accident did not happen, or the that appellant may

be an unscrupulous claimant. An assertion or suggestion that the appellant's claim is fraudulent

should not be founded on suspicion or inference, but must be based on facts; and there were no

facts before the court below to show that the appellant was an unscrupulous claimant or that the

appellant's claim was fraudulent or that the accident did not happen.

It is also pertinent to observe that in the defence to the appellant's statement of claim, filed

in court below 19th September, 2011, the respondent never pleaded that the appellant's claim was

in any way fraudulent or that the accident did not happen; the respondent merely denied liability

and averred that "if at all the accident occurred, ... [it}. .. was caused by negligence of the driver

of motor vehicle number TO 3883 Land Rover Station Wagon". The respondent denied that the

appellant had suffered any injuries and put the appellant to strict proof thereof. The respondent

also pleaded that its "liability, if any, is subject to the owner of motor vehicle registration number

SA 4911 ... being found liable in respect of the ... accident", and further that the respondent's

"liability, if any, is ... to indemnify the owner of the motor vehicle ... to the extent of the maximum

liability contained in the contract of insurance between itself and the owner of the motor vehicle.".

Furthermore, on 3rd May, 2012, the respondent filed summons, pursuant to Order 14A r 1 of the

Rules of the Supreme Court, to dispose of the matter on a point of law. The gist of the respondent's

application was that the policy of insurance in respect of motor vehicle SA 4911 "did not cover or

40

extend cover to passengers"; that the appellant was travelling in the vehicle as a passenger and

was, therefore, not covered by the respondent's policy of insurance, and the appellant, therefore,

has no cause of action against the respondent. The respondent's application to dispose of the matter

on a point of law was eventually determined on 17th January, 2014 and dismissed.

Both in its defence and application to dispose of the matter on a point of law the respondent

sought deny or limit its liability, but never raised the issue that the appellant's claim was fictitious

or fraudulent, or that the accident did not happen. The assertion or suggestion by the respondent

that the appellant's claim is fictitious or fraudulent, or that the accident did not happen, is certainly

inconsistent with the manner in which the respondent responded to appellant's claim.

We are of the firm view that in the present case the appellant's testimony in the court below,

which does not appear to have been discredited, sufficiently proves, on the balance of probabilities,

that the accident did occur; and we so find.

Liability for the accident

In relation to liability for the accident the court below in its judgment held that " ... the

traffic police officer is specially mandated, may be even trained, to analyze road accidents and

give expert opinion on the cause or causers of accidents ... the absence of the expert witness in the

form of a traffic officer, the two respective drivers referred to by the [appellant] were not invited

to give testimony as to what actually happened. The narration of the [appellant] as to the cause of

the accident is not supported by expert evidence considering that there is no proof that the

[Appellant] was a driver or that she had driven a vehicle before in order for her know with

precision the speed at which the vehicle was going and whether or not the accident took place and

who caused it. Even allowing that the [Appellant] had personal knowledge of how a motor vehicle

works, it is hard to believe that at this hour precisely 2.00 am the [appellant's] eyes were glued to

the speedometer just at the time of impact while at the same moment recording the exact

movements of both motor vehicles . ... ".

The appellant's grounds (i) and (ii) of the appeal, namely, "the trial Judge erred in law in

declining to find liability in favour of the [ Appellant] on the ground that the traffic officer and/or

the drivers of the motor vehicles which were involved in a collision were not called to testify on

the cause of the accident", and "the learned trial Judge erred at law in treating what would have

come from a traffic officer as expert evidence to and the best evidence to prove the [appellant's]

case", respectively, both relate to the issue of liability for the accident and could, perhaps,

conveniently be dealt with together.

Counsel for the appellant argues and submits that the court below was of the view that the

expert evidence of the traffic police officer would have been the best evidence on the cause of the

accident, and further that the traffic police officer would have given first-hand information about

the accident. Counsel for the appellant faults the view of the court below by arguing and submitting

that the duty of an "expert" is merely to assist the court on matters within his or her expertise; that

it is not competent for an expert witness to express an opinion upon any issues, whether law or

fact, which the court has to determine. In support of this argument and submission, counsel for the

41

appellant, among other case authorities, cites Olive Mtaila v National Bus Company & NICO

General Insurance (supra) and Chipiliro Banda v Southern Bottlers Limited (supra).

Counsel for the appellant argues and submits that in this matter the court below was

required to determine whether, based on the evidence before it, an accident occurred on 27th March,

2011 and, if so, who was to blame for the accident; that by declining to assess the evidence because

there was no opinion of a traffic police officer, the court below abdicated its duty. Furthermore, it

is argued and submitted that the suggestion or inference that a traffic police officer is trained to

give expert opinion on the cause of the accident is not supported by law; that there is no evidence

before the court below that a traffic police officer was present at the time of the occurrence of the

accident; the evidence of the traffic police officer could only have been "first-hand information"

if the traffic police officer was present at the time of the occurrence of the accident. Counsel for

the appellant also faults the court below for suggesting that the drivers of the two vehicles involved

in the accident should have been called as witnesses; and argues and submits that the appellant

herself had first-hand information on how the accident. Instead it is argued and submitted that the

evidence of the appellant in the court below was direct and the court should have proceeded to

assess that evidence without requiring the evidence of the drivers of the motor vehicles involved

in the accident.

In response to the arguments and submissions on behalf of the appellant in relation to

grounds (i) and (ii) of the appeal, counsel for the respondent points out that the appellant failed to

call as witnesses the traffic police officer who prepared the abstract police report and the drivers

of the motor vehicles that were involved in the accident to testify on the cause of the accident. It

is argued and submitted that, on the basis of the failure by the appellant to call these witnesses, an

adverse inference should be drawn that these witnesses would have provided testimony that would

have contradicted the appellant's case. In support of this argument and submission counsel for the

Respondent cites as case authorities NBS Bank Ltd v BP Malawi Ltd Commercial Cause No. 12 of

2007 and Maonga and others v Blantyre Print and Publishing Ltd (1991) 14 MLR 240.

Alternatively, counsel for the respondent argues and submits that, based on the failure by the

Appellant to call these witness, an adverse inference should be drawn that the Appellant's claim

is fictitious. In support of this submission and argument counsel for the respondent cites as case

authority Leyland Motor Corporation Ltd v Mohamed Civil Cause No. 240 of 1983. Counsel for

the respondent also faults the appellant for not calling as witnesses the traffic police officer and

the two drivers of the vehicles involved in the accident and argues and submits that the court below

was justified in holding that the appellant had failed to discharge the burden of proof, on the

balance of possibilities, on account of omission to summon material witnesses.

While we appreciate the view expressed by the court below that the traffic police officer is

specially mandated, and may even be trained, to analyze road accidents and give expert opinion

on the cause or causers of accidents", we do not share the view that a traffic police officer is

necessarily an expert witness. The traffic police officer is not an expert, and does not become one,

simply because, in the nature of things, he or she investigates traffic accidents or other crimes. It

is question of fact to be proved whether a particular traffic police officer has had the necessary

42

training and, therefore, expertise to qualify him or her as an expert. The fact that a police officer is a traffic officer does not by itself make him or her an expert in road traffic accidents.

We do not share the view expressed by the court below that the evidence of the traffic police officer would have been the best evidence on the cause of the accident, and further that the traffic police officer would have given first-hand information about the accident if, as seems to be case in this matter, the traffic police officer was not present at the time that the accident occurred. Furthermore, even where a traffic police officer is an "expert", his or her evidence would merely assist the court on matters within his or her expertise, and it would not be competent for him or her to express an opinion upon any issues, whether law or fact, which the court has to determine.

We are not persuaded by the argument and submission, on behalf of the respondent, that based on the omission or failure by the appellant to call as witnesses the traffic police officer and the drivers of the two vehicles involved in the accident, an adverse inference should be drawn that those witnesses would have provided testimony that would have contradicted the appellant's case, or that, based on the omission or failure by the appellant to call those witness, an adverse inference should be drawn that the appellant's claim is fictitious; and further we certainly do not share the view expressed, on behalf of the respondent, that the court below was justified in holding that the appellant had failed to discharge the burden of proof, on the balance of possibilities, regarding liability or fault for the accident, on account of omission or failure to call material witnesses.

We do not share the view that it is necessary in every case to call the traffic police officer who visited the scene of a road traffic accident to prove that the accident occurred especially where, as in this present case, the appellant's witness statement, which does not appear to have been discredited, sufficiently proves, on the balance of probabilities that the accident did occur and who was to blame for the accident. Furthermore, it seems to us that the appellant was, perhaps, complacent to adopt the abstract of the police and the medical report in her evidence in chief, but that does not appear to us a sufficient basis for an adverse inference that the omission or failure to call the traffic police officer and the drivers of the two vehicles involved in the accident would have provided testimony that would have contradicted the appellant's case, or that an adverse inference should be drawn that the appellant's claim is fictitious, especially when the respondent did not object to the tendering in evidence of the abstract police report, and medical report, and did not challenge the evidence of the appellant during cross-examination that the accident indeed occurred and who was to blame for the accident. We wish to stress that the assertion or suggestion that the appellant's claim is fictitious or fraudulent is a serious criminal allegation and should not be founded on suspicion or inference, but must be based on facts, and must be specifically proved; and there were no facts before the court below to show that the appellant's claim was fictitious, as suggested by the respondent, or that the appellant's claim was fraudulent, or that the appellant was an unscrupulous claimant or that the accident did not happen.

We are, accordingly, of the firm view that, to the extent that the court below declined to find liability in favour of the appellant principally on the ground that the traffic officer and/or the drivers of the motor vehicles which were involved in a collision were not called to testify on the cause of the accident; and treated the evidence which would have come from a traffic officer as

43

expert evidence and the best evidence to prove the appellant's case, the court below erred. Grounds

(i) and (ii) of the appeal are, therefore, sustained.

Exclusion of the evidence ofthe police report on the ground that it was inadmissible on the basis

of the hearsay rule,· disregarding the police report on the ground that it was hearsay evidence

when there was no ob;ection to its admissibility during the trial,· disregarding the contents o(the

police report when the report had been adopted and formed part o(the evidence o(the Appellant

viva voce,· and deciding on the aspect of admissibility of the police report without first hearing

arguments of the parties on the same {grounds (v), (vi) (vii) and (viii) of the appeall

The gist of the arguments and submissions by counsel for the appellant, in so far as they

relate to the grounds of appeal (v), (vi) (vii) and (viii), namely, the exclusion of the evidence of

the police report on the ground that it was inadmissible on the basis of the hearsay rule;

disregarding the police report on the ground that it was hearsay evidence when there was no

objection to its admissibility during the trial; disregarding the contents of the police report when

the report had been adopted and formed part of the evidence of the Appellant viva voce; and

deciding on the aspect of admissibility of the police report without first hearing arguments of the

parties on the same, may be summarized as follows-

(a) that because the abstract of the police report (and the medical report) were tendered

and accepted as part the evidence of the appel !ant, it was not open to the court below to

exclude those reports (or any part thereof) on the basis that they were inadmissible; and

that the issue of the admissibility or inadmissibility of the abstract of the police report (and

the medical report) should have been resolved at the trial, not after the close of the case;

(b) that the duty of the court is to rule on any objection that may be raised in relation

to the admissibility of any document; that the respondent, who was duly represented by

counsel during the trial in the court below, did not raise any objection to the admissibility

of the police report (and the medical report);

(c) that the court below erred in law in treating the police report (and the medical

report) as hearsay and inadmissible when counsel for the respondent did not object to its

admissibility; that by not objecting to the admissibility of the police report (and the medical

report), the presumption is that the respondent had no issue with the evidence in the police

report (and the medical report); and that the court below "descended into an arena that is

the exclusive preserve of counsel.".

(d) that the court below should have invited and heard the parties before deciding on

the admissibility of the police and that, in effect, the failure by the court below to do so

occasioned a miscarriage of justice; and

(e) that the admissibility of police reports (and medical reports), being public

documents, is an exception to the hearsay rule.

The gist of the arguments and submissions by counsel for the respondent in response to the

appellants arguments and submissions in relation to grounds (v), (vi), (vii) and (viii) of the appeal

may be summarized as follows-

44

(a) that "a statement written or made orally by a person other than the witness testifying

is hearsay and therefore inadmissible", but that the admission of public documents is

exempted under the hearsay rule;

(b) that a public document was defined "as a document that is made for the purpose of

the public making use of it, and being able to refer to it; and that it should be made for the

purpose of being kept public, so that persons concerned with it may have access to it

afterwards";

(c) that for a document to qualify as an admissible public record, it must satisfy four

requirements, namely, "it must be available for public inspection; the person compiling the

document must be under a public duty to satisfy himself [or herself] of the truth of the

statement; it must concern a public matter; and the document must have created to be

permanent, not temporary";

(d) that the abstract police report exhibited by the appellant in this matter is not a copy

of a police report but merely an abstract of such particulars as may be useful to persons

who may be concerned"; that the abstract police report expressly states "Police reports,

books and records are confidential and privileged and the Inspector General is unable to

accede to any request for copies of such documents and further that such abstracts are not,

and do not purport to be actual copies of reports. "; and that the abstract police report

exhibited and relied upon by the appellant does not concern a public matter; is not a

permanent document; is not available for public inspection; and is not a public document;

(e) that police reports do not qualify to be admissible as public documents, and as such

are only admissible to show that they were made, but not as to the truth of their contents in

the absence of the author thereof testifying in court; and that the contents of the abstract

report tendered in the court below by the appellant are not admissible, and no weight should

be attached to the report, in so far as they try to show that the respondent's insured driver

negligently caused the accident; and in regard the decisions in Olive Mtaila v National Bus

Company Ltd and Sadick Jimu v NICO General Insurance Company Ltd "which held that

police reports are generally admissible under the exception to the rule against hearsay were

made per incuriam "; and that those "cases did not take into account the relevant binding

precedents, and the fact that an abstract report of the police is not a police report, at all;

(f) that the cases of Olive Mtaila v National Bus Company Ltd and Sadick Jimu v NICO

General Insurance Company Ltd "are distinguishable from the present case on the basis

that in the present case the appellant tendered in court an abstract report of the police, not

the police report"; and that the abstract police report was a private or personal

communication between the Inspector General and the appellant following a request by the

appellant;

(g) that the abstract police report is admissible only to the extent that it was made, and

not to the veracity of its contents because the author thereof was not called to testify as a

witness;

45

(h) that, with respect to the position advanced, on behalf of the appellant, namely, that

because no objection was raised by the respondent in relation to the tendering of the report

in the court [below], the report, including the veracity of the contents is admissible-

(aa) "the fact that the court below did not admit the abstract report as to the

truthfulness of its contents does not raise any new pleading or fact which requires

the parties to be held, let alone a requirement for an objection . ... "; "what the court

[below] did in the circumstances is within its mandate, which is to ensure that it

takes in account only legally relevant facts and the prescriptions of the law" in

accordance with section 9 of the Constitution;

(bb) the case authorities Stirland v DP P, Jackson Chimkango v Repubic and Day

v Reginam which were cited on behalf of the appellant in support of the contention

that the contents of the abstract police report are admissible on the basis that the

report was not objected at the time it was being tendered in the court below, are not

applicable in the present matter; that these cases relate to criminal matters where

the standard of proof is beyond reasonable doubt and are, therefore, not applicable

in this matter; that in both those cases the appellants failed to object to the tendering

of inadmissible evidence in the course of the trial and subsequently grounded an

appeal on the basis of the admission of the evidence to which they failed to object;

and that the appellants in those cases "preserved the ground of objection for a

possible appeal"; and, consequently, those cases are not applicable in this matter;

and

(cc) where evidence tendered by a party is inadmissible, as is the case in the

present matter, there is no obligation on the other party to object to it being tendered

or to rebut the evidence; that the contents of the abstract police report exhibited by

the appellant are inadmissible and no weight should be attached thereto for the

purposes of establishing whether the respondent's insured driver was to blame for

the accident; and that even if the abstract police report was adopted by the appellant,

she was not the author of the report,

and the court below was, consequently, "justified in not admitting the evidence of the

abstract police report, even if the same was not objected to at the time it was tendered.

All of the arguments and submissions made on behalf of the appellant and the respondent

in relation to grounds (v), (vi) (vii) and (viii) of the appeal, revolve around the law governing

hearsay evidence. It is, therefore, appropriate to consider the law governing hearsay evidence.

Law governing hearsay

It is generally accepted that oral or written assertions of persons, other than a witness

testifying, are inadmissible as evidence of the truth of that which is asserted. Hearsay may thus be

defined as a third person's assertion narrated to the court by a witness for the purpose of

establishing the truth of what is asserted. Although the rule against the admissibility of hearsay has

46

never been fully formulated judicially, there is broad concurrence with the view expressed in

Subramanian v Public Prosector (supra) at p.969 that-

"Evidence of a statement made to a witness by a person who is not himself [or herself]

called as a witness may or may not be hearsay. It is hearsay and inadmissible when the

[objective} of the evidence is to establish the truth of what is contained in the statement.

It is not hearsay and admissible when it is proposed to establish by evidence, not the

truth of the statement, but the fact that it was made . ... ".

Rationale o(the rule

Various justifications have been advanced by the courts for the existence of the rule against hearsay. Hearsay is generally inadmissible because for a variety of reasons the courts are not willing to assume that the witness narrating the statement is telling the truth, and that the maker of the statement was doing likewise. A witness gives evidence on oath or affirmation and is subject to cross-examination, and the court has ample opportunity of forming its own opinion of the veracity of the evidence of the witness, but there is no such means of checking the trustworthiness of the maker of the statement]. Although the justifications have been expressed differently, they generally each amount to an assertion that repo1ied statements are untrustworthy evidence of facts stated; to quote Lord Normad in Teper v R [ 1952] AC 480 at p.486

" ... the rule against the admission of hearsay evidence is fundamental. It is not the best

evidence, and it is not delivered on oath. The truthfulness and accuracy of the person

whose words are spoken by another witness cannot be tested by cross-examination,

and the light which his demeanour would throw on his testimony is lost ... ".

Statements in public documents

Statements in public documents are generally admissible evidence of the truth of their contents. In Sturla v Freccia (1880) 5 App Cas 623 HL the locus classicus for this branch of the law at pp 643-4 Lord Blackburn stated -

" ... the principle upon which it goes is, that it should be a ... public document, and

made by a public. I do not think that that "public" there is to be taken in the sense of

meaning the whole world. I think an entry in the books of a manor is public in the sense

that it concerns all the people in the manor. And an entry probably in a corporation

book concerning a corporate matter, or something in which all the corporation is

concerned, would be "public" within that sense. But it must be a public document, and

it must be made by a public officer. I understand a public document there to mean a

document that is made for the purpose of the public making use of it, and being able to

refer to it. It is meant to be where there is a judicial, or quasi-judicial, duty to inquire,

as might be said to be the case with the bishop acting under the writs issued by the

crown. That may be said to be quasi-judicial. He is acting for the public when that is

done; but I think the very object of it must be that it should be made for the purpose of

being kept public, so that the persons concerned in it may have access to d afterwards.

47

In many cases, entries in the parish register, of births, marriages, and deaths, and other

entries of that kind, before there were any statutes relating to them, were admissible,

and were "public" then, because the common law of England making it an express duty

to keep the register, made it a public document, in that sense, kept by a public officer

for the purpose of a register, and so made it admissible. . .. ".

The most succinct formulation of this exception to the hearsay rule is that of Phillimore J

in Wilton & Co. v Phillips (1903) 19 TLR 390

" ... A public document coming.from a proper place or a certified copy of it is sufficient

proof of every particular stated in it ... ".

Conditions of admissibility o(public documents

There must be a public duty to inquire and record; the record or issue must relate to a public

matter; the retention of the record must be permanent; and the record must be open to public

inspection. (See: Sturla v Freccia (supra) at pp 643-4).

Admissibility o(police report or abstract ofpolice report

Counsel for the appellant argues and submits that the admissibility of police reports, being

public documents, is an exception to the hearsay rule; and cites as case authority Olive Mtaila v

National Bus Company & NICO General Insurance Co. Ltd (supra) and Sadick Jimu v NICO

General Insurance Co, Ltd (supra). On the other hand, counsel for the respondent argues and

submits that police reports are generally not admissible as they do not qualify to be admissible

public documents and as such are only admissible to show that they were made, but not as to the

truth of their contents in the absence of the owner thereof testifying in court; and Counsel for the

Respondent cites the following case authorities: Patrick Khaiya v United General Insurance Co.

Ltd (supra); Sainani Nthara and others v Real Insurance Company Ltd (supra); Janet Justin v

Prime Insurance Co. Ltd (supra); and Joseph Chilomo v Prime Insurance Ltd (supra). Counsel for

the respondent also argues and submits that the decisions in Olive Mtaila v National Bus Company

Ltd (supra) and Sadick Jimu v NICO General Insurance Company Ltd (supra) did not take into

account the relevant binding precedents, nor the fact that an abstract report of the pol ice is not a

police report. Counsel for the respondent further argues and submits that the case of Olive Mtaila

v National Bus Company Ltd and Sadick Jimu v NICO General Insurance Company Ltd are

distinguishable from the present case on the basis that in the present case the Appellant tendered

in court an abstract of the police report, not the police report; that the abstract police report was a

private or personal communication between the Inspector General and the Appellant following a

request by the Appellant.; and in support of this argument and submission Counsel for the

Respondent cites as case authority Haji Chrissie v New Building Society Bank (supra) and Victoria

Matemba v Martin Banda & Others (supra).

Among the High Court case authorities cited by both counsel, the majority exclude the

admission of police reports or abstract police reports on account of the hearsay rule. It is, therefore,

appropriate to interrogate further the rationale behind the High Court case authorities which

express a contrary view.

48

In Olive Mtaila v National Bus Company & NICO General Insurance Co. Ltd (supra) the

court held that police reports are generally admissible under the exception to the rule against

hearsay in that they are made in the regular course of business; and further, that police reports are

admissible seems to be settled in the very persuasive decision of the England and Wales Court of

Appeal (the "Court of Appeal") in Hoyle v Rodgers & Another, in which Lord Justice Clarke

clearly sets out the principles on which reports, including police reports are admissible in the court

of law, namely, that "In so far as the report consists of statements or reports statements offact, it

is, prima facie, admissible. It is immaterial that it constitutes hearsay, whether primary or

secondary ... ". The view expressed in Olive Mtaila v National Bus Company & NICO General

Insurance Co. Ltd (supra), is based on the decision of the Court of Appeal in Hoyle v Rodgers &

Another and, in order to appreciate whether that decision is of general application in relation to

reports, including police reports, it is useful to understand the circumstances pertaining in that

case.

The facts in Hoyle v Rodgers &Another, in so far as they are relevant in this matter, are as

follows-

On 15th May, 2011, Rodgers was a passenger in a vintage propeller bi-plane piloted by

Hoyle. In the course of the flight the plane crashed; Rodgers was killed and Hoyle was

seriously injured, but survived. The claimants (respondents in the appeal and Rodger's

mother and sister) sued as executors, on behalf of the estate and the dependants, for

damages for the death of Rodgers as a result of the accident which they attributed to

the negligence of Hoyle.

The accident was investigated by the Air Accident Investigation Branch ("AAIB"),

which is a part of the British Department for Transport, and the AAIB produced a report

on 14th June 2012.

The issue in the Court of Appeal was, inter - alia, whether the judge was right to hold

that the report of the AAIB was admissible in evidence. The Appellant contended that

the admission of the Report would offend the rule in Hollington v Hewthron [ 1943] KB

857; that, in so far as the Report contains expressions of opinion, it does not comply

with the mandatory provisions of CPR Part 35 and should be excluded on that ground

as well; and that, if the Report is potentially admissible, it should be excluded as a

matter of discretion under CPR Part 32, and the judge was wrong not to do so.

The AAIB was established in 1915; its mandate is to investigate accidents and serious

incidents involving aircraft which occur in or over the United Kingdom. The AAIB has

statutory powers contained in the Civil Aviation Act (Investigation of Air Accident and

Incidents) Regulations (the "Regulations"), promulgated pursuant to the Civil Aviation

Act, 1982. The Regulations implement the EU obligations of the United Kingdom

(under Council Directive 94/56/EC of 21 November, 1994, and put into effect the

requirements of Annex 13 to the Convention on International Civil Aviation which, in

article 26, provides that a State in which an accident to an aircraft occurs must institute

49

an inquiry in accordance with the procedure recommended in Annex 13 to the

Convention.

Regulation 8 of the Civil Aviation Act (Investigation of Air Accident and Incidents)

Regulations provides for the appointment of "inspectors of Air Accidents (collectively

known as AAIB); and whenever an accident occurs in or over the United Kingdom,

one or more inspectors must be appointed to carry out an investigation. With respect to

the accident investigation in Hoyle v Rodger & Another the inspectors included an

operations inspector, who was a qualified and experienced pilot; an engineer inspector,

who was a chartered aeronautical engineer; and a flight inspector, who was qualified

in avionics and/or flight data analysis.

The Regulations give inspectors power to enable them to carry out investigations,

including rights to access to accident sites, and aircraft or aircraft wrecks, flight

recorders and other recordings; to examine witnesses, including the power to summon

them to give evidence, to require them to answer questions or produce documents, and

to require the giver of a statement to make and sign a declaration of truth, to inspect

any place, building or aircraft and to take measures for the preservation of evidence;

and the right to have access to relevant information or records held by the owner,

operator or manufacturer of the aircraft, and by the civil aviation and airport authorities.

There are two critical features of an AAIB investigation. The sole objective of the

investigation is the prevention of aircraft accidents and incidents. The purpose of the

investigation is not the opportionment of blame or liability for the accident. AAIB

reports are required to contain safety recommendations; the safety recommendations

shall in no case create a presumption of liability; the report is required to protect the

anonymity of those involved in the aircraft accident or incident. The report is a public

document, but the record of the investigations are not.

The AAIB report in issue in Hoyle v Rodgers & Another was found by the Court of

Appeal to be a public document of a mixture of statements of fact and statements of

opinion. With respect to the statements of fact in the report, the Court of Appeal held-

" ... The potential value of this material to anyone seeking to establish the

cause of the accident (and culpability thereof) is obvious. The inspectors

are experienced and expert individuals fulfilling a public duty to investigate

air accidents or incidents for the purpose of preventing further accidents or

incidents in future. It is not part of their function to attribute blame or

responsibility. There is, thus, no realistic possibility of their report being

slanted so as to support or refute a claim that any individual or corporation

is or is not at fault. Their investigation is carried out as soon as possible

after the accident or incident. The investigators have power, and in practice

the ability to obtain necessary information from a wide range of sources in

order to establish, on the basis of information obtained soon after the

relevant events, a composite picture of what happened and why. They need

so

to do that in order to try and avoid it happening again. I agree with the

judge when he said that a non-lawyer would be astonished that a report of

the AAIB was not something to which a court could even have regard ... In

so far as the report consists of statements or reported statements of fact, it

is, prima facie, admissible. It is immaterial that it consists hearsay, whether

primary or secondary. ... ".

ft is clear on a sombre reading of the judgment of the Court of Appeal in Hoyle v Rodgers

& Another that the passage "in so far as the report consists of statements or reported statements

of fact, it is, prima facie, admissible. It is immaterial that it consists hearsay, whether primary or

secondary. ... " quoted in Olive Mtaila v National Bus Company & NICO General Insurance Co.

Ltd (supra) refers specifically to the AAIB report, and not to reports generally. It is pertinent to

observe that the AAIB report in issue in Hoyle v Rodgers & Another is a statutory report compiled

by expert investigators in exercise of statutory mandate, and the report is a public document. The

AAIB report in Hoyle v Rodger & Another was in fact compiled by expert inspectors who included

an operations inspector, who was a qualified and experienced pilot; an engineer inspector, who

was a chartered aeronautical engineer; and a flight inspector, who was qualified in avionics and/or

flight data analysis. Furthermore, unlike police traffic accident reports or abstract police traffic

accident reports, and as indicated by the Court of Appeal, in the case of AAIB reports, "the

inspectors are experienced and expert individuals fulfilling a public duty to investigate air

accidents or incidents for the purpose of preventing further accidents or incidents in future; it is

not part of their function to attribute blame or responsibility; and there is, thus, no realistic

possibility of their report being slanted so as to support or refute a claim that any individual or

corporation is, or is not at fault".

It would, therefore, not be appropriate to extend the principle expounded by the Court of

Appeal in Hoyle v Rodgers & Another to police traffic accident reports or abstract police traffic

accident reports generally, or the abstract police traffic report in this matter.

In Sadick Jimu v NICO General Insurance Co, Ltd (supra) the court held that medical

reports and police reports, as those being tendered in personal injury cases, are "public

documents"; that this is because these documents are made by public officers acting in discharge

of a strict duty to enquire into, and satisfy themselves as to the truth of facts contained in those

documents; that what is recorded in the medical reports and police reports are supposed to be

findings which are done by a medical officer upon examining the person injured, or a police officer

upon investigating the circumstances surrounding an accident; that both the medical officer and

policeman record their findings in reports, which reports are made under the public authority of

the Malawi Police Service and the Ministry of Health; that in view of this these reports are exempt

from the rule against hearsay, and that they fall within the common law exceptions to the rule

against hearsay; and further that within the context of Malawi, these documents may be justified

on the grounds of reliability and convenience.

The court in Sadick Jimu v NICO General Insurance Co, Ltd (supra) seems to suggest that

medical and pol ice reports tendered in personal injury cases are "public documents" because these

documents are made by public officers acting in discharge of a strict duty to enquire into, and

51

satisfy themselves as to the truth of facts contained in those documents, and are, therefore, "exempt

from the rule against hearsay and that they fall within the common exceptions to the rule against

hearsay, and that within the context of Malawi these documents may be justified on the grounds

of reliability and convenience". However, in our considered opinion, the case authorities on the

subject matter do not support the view expressed by the court.

In White & Others v Taylor [ 1969] 1 Ch 150, a case cited by the court in Sadick Jimu v

NICO General Insurance Co, Ltd (supra), it was, among other things, held that -

" ... As regards the document being admissible as a public document ... I think the

authorities establish that to constitute a public document for the purposes of this rule

the document must be brought into existence for the purpose of its being retained

indefinitely as a document of record, available for inspection by the public . ... "p. 155

In R v Halpin [ 1975] 1 QB 907, another case cited by the court Sadick Jimu v NICO General Insurance Co, Ltd (supra), the conditions which must be satisfied before a document may be admitted in evidence as an exception to the rule against hearsay were discussed; and the court underscored the fact that the document "must be brought into existence and preserved for public use on a public matter" and further that the document must be open to public inspection. In that case the court actually referred to Sturla v Freccia (supra), the locus classicus for this branch of the law and quoted Lord Blackburn as follows-

" ... the principle upon which it goes is, that it should be a ... public document, and

made made by a public. I do not think that that "public" there is to be taken in the

sense of meaning the whole world. I think an entry in the books of a manor is public in

the sense that it concerns all the people in the manor. And an entry probably in a

corporation book concerning a corporate matter, or something in which all the

corporation is concerned, would be "public" within that sense. But it must be a public

document, and it must be made by a public officer. I understand a public document

there to mean a document that is made for the purpose of the public making use of it,

and being able to refer to it. It is meant to be where there is a judicial, or quasi-judicial,

duty to inquire, as might be said to be the case with the bishop acting under the writs

issued by the crown. That may be said to be quasi-judicial. He is acting for the public

when that is done; but I think the very object of it must be that it should be made for

the purpose of being kept public, so that the persons concern in it may have access to

it afterwards.

In many cases, entries in the parish register, of births, marriages, and deaths, and other

entries of that kind, before there were any statutes relating to them, were admissible,

and were "public" then, because the common law of England making it an express duty

to keep the register, made it a public document, in that sense, kept by a public officer

for the purpose of a register, and so made it admissible. ... ".

In both Olive Mtaila v National Bus Company & NICO General Insurance Co. Ltd (supra)

and Sadick Jimu v NICO General Insurance Co, Ltd (supra) the court did not consider whether

police traffic accident reports were "public documents" in line with the criteria set out in Sturla v

52

Freccia (supra); nor did the court in Sadick Jimu v NICO General Insurance Co, Ltd (supra)

consider the issue in relation to medical reports.

In our considered opinion the criteria for determining whether a document is admissible,

as an exception to the rule against hearsay, is not, and should not be, whether the document is

made in the regular course of business, as suggested in Olive Mtaila v National Bus Company &

NICO General Insurance Co. Ltd (supra). Furthermore, the criteria for determining whether a

document is admissible, as an exception to the rule against hearsay, is not, and should not be,

whether the document is made by a public officer in the discharge of a duty to inquire into and has

satisfied himself or herself of the truth of the facts ( or indeed opinions) contained in the document,

or on the basis of the reliability or convenience, as suggested in Sadick Jimu v NICO General

Insurance Co, Ltd (supra). In order to be admissible as public document, and an exception to rule

against hearsay evidence, the document must in fact be a public document in the strict sense of the

term, and must satisfy the criteria recognized by case authority. There must be a public duty to

inquire and record; the issue or record must relate to a public matter; the retention of the record

must be permanent, not temporary; and the record must be open to public inspection.

It is also pertinent to observe, in relation to police traffic accident reports generally, and

also the specifically the abstract of police accident report in this matter, that the report expressly

states, under the heading "PARTICULARS OF ROAD ACCIDENT" that "this is not a copy of a

police report but merely an abstract of such particulars as may be useful to persons who may be

concerned"; and under the heading "MEMORANDUM", the abstract police report states "Police

reports, books and records are confidential and privileged and the Inspector General is unable to

accede to any request for copies of such documents and further that such abstracts are not, and

do not purport to be actual copies of reports. ".

We do not share the view that a police traffic accident report, or an abstract police traffic

accident report, is a public document, and as such is only admissible to show that it was made but

not as to the truth of its contents if the author thereof does not testify in court. A typical a police

traffic accident report, or an abstract police traffic accident report, in so far as it contains

contentious facts, including who was to blame for the accident, if not tendered by its author, but

admitted wholly in evidence as a public document, deprives the adverse party the opportunity to

cross-examine the author and test the veracity of the content of the report; it also the deprives the

court the opportunity to form an opinion of the veracity of the content of the report. Indeed, to

allow the admission of such a report on the basis that it is a public document could most certainly

lead to numerous otherwise unjustified or unmeritorious judgments in traffic related cases.

Similarly, we do not share the view that a medical report is a public document, and as such is only

admissible to show that it was made but not as to the veracity of its contents, if the author thereof

does not testify in court. We are of the firm that, in so far as the police traffic accident report, or

abstract of the police traffic accident report, and the medical report, were tendered and accepted

as part of the appellant's evidence, those documents are admissible only to the extent that they

show that the police traffic accident report, or abstract of the police traffic accident report and the

medical report, as the case may be, was made, but not as to the veracity of their content. In this

regard, we affirm decisions of the High Court in Patrick Khaiya v United General Insurance Co.

53

Ltd (supra); Sainani Nthara and others v Real Insurance Company Ltd (supra); Janet Justin v

Prime Insurance Co. Ltd (supra); Andrew Jim v Prime Insurance Ltd (supra); and Joseph Chilomo

v Prime Insurance Ltd (supra).

The arguments and submissions by counsel for the appellant, in so far as they relate to the

grounds (v), (vi) (vii) and (viii) of the appeal, namely, that because the abstract of the police report

( and the medical report) were tendered and accepted as part the evidence of the Appellant, it was

not open to the court below to exclude those reports (or any part thereof) on the basis that they

were inadmissible; and that the issue of the admissibility or inadmissibility of the abstract of the

police report (and the medical report) should have resolved at the trial, not after the close of the

case; that the duty of the court is to rule on any objection that may be raised in relation to the

admissibility of any document; that the respondent, who was duly represented by counsel during

the trial in the court below and did not raise any objection to the admissibility of the police report

(and the medical report); that the court below erred in law in treating the police report (and the

medical report) as hearsay and inadmissible when counsel for the respondent did not object to its

admissibility; that by not objecting to the admissibility of the police report (and the medical report),

the presumption is that the respondent had no issue with the evidence in the police report (and the

medical report); and that the court below "descended into an arena that is the exclusive preserve

of Counsel"; and that the court below should have invited and heard the parties before deciding on

the admissibility of the police and that, in effect, the failure by the court below to do so occasioned

a miscarriage of justice, do not detract from the fact that, in so far as the police traffic accident

report, or abstract of the police traffic accident report, and the medical report were tendered and

accepted as part of the evidence of the appellant, as a matter of law, those documents are admissible

only to the extent that they show that they were made, but not as to the veracity of their content.

Despite the alleged procedural lapses that may have occurred during the trial, including the

fact that, in the court below, counsel for respondent did not raise any objection to the tendering

and admissibility of the abstract traffic accident police report and the medical report; that the court

below did not invite and hear the parties before deciding on the admissibility of the abstract police

report, and perhaps, that the issue of the admissibility or inadmissibility of the abstract of the police

report and the medical report should have resolved at the trial, not after the close of the case, in

the final analysis the court below, in accordance with its constitutional duty under section 9 of the

Constitution, had to determine the issue "in an independent and impartial manner, with regard only

to legally relevant facts and the prescriptions of law".

We do not share the view expressed by counsel for the appellant that in this matter the

alleged procedural lapses amounted to a miscarriage of justice, or that the appellant was prejudiced

in any way. Where, as in this matter, a party, deliberately or inadvertently, opts not to call as a

witness the author of a document, as required by law, but tenders the document in evidence as part

of the evidence of another witness who is not the author of the document, such party shou Id not,

and cannot, justify its failure to call as a witness the author of the document on the grounds that

his or her decision to do so was not objected to.

The case authorities Stirland v DP P, Jackson Chimkango v Repubic and Day v Reginam

are cited on behalf of the Appellant in support of the contention that the contents of the abstract

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police report are admissible on the basis that the report was not objected to at the time it was being

tendered in the court below, are of course distinguishable on the principal basis that in those cases

the appellants "preserved their right to object to the admission of hearsay evidence for a possible

appeal, and the court properly held that "objection to hearsay evidence must be raised during the

trial, and not preserved as a weapon for appeal". In this case, however, the respondent has not

preserved his right to object to the admission of hearsay evidence as a weapon for appeal. The

appellant tendered the hearsay evidence and seeks to justify the admissibility of that evidence on

the basis that the respondent did not object to the admissibility of the evidence at the appropriate

time.

It does not appear to us that there is any merit in grounds (v), (vi) (vii) and (viii) of the

appeal and we, accordingly, dismiss grounds (v), (vi) (vii) and (viii) of the appeal.

Judgment against the weight of the evidence and the court below dismissing the plaintiff's case

without considering the totality of the evidence [grounds (iii), (iv) and (ix) o(the appeal!

Counsel for the appellant consolidated grounds (iii) (iv) and (ix) of the appeal, and argued

and submitted that the Appellant gave evidence on how the accident happened; that in her witness

statement the Appellant stated that the accident happened near TJ's junction opposite College of

Medicine Sports Complex; that the vehicle in which she was a passenger collided with another

vehicle; and that the accident was influenced by vehicle registration number SA491 l in which she

a passenger which was travelling at excessive speed, and was travelling in the lane of the motor

vehicle from the opposite side. It is argued and submitted that the appellant's evidence was not

controverted; that the respondent did not adduce any evidence to contradict the appellant's version

of how the accident happened; and that on the basis of the appellant's uncontroverted evidence the

court below should have liability in favour of the appellant. It is argued and submitted that if the

court below did not believe or rejected the appellant's evidence with respect to the occurrence of

the accident, then the court below was required to give plausible reasons. Counsel for the appellant

faults the court below for rejecting the appellant's evidence regarding whether the accident

occurred, and who was to blame for the accident, and argues and submits that the fact that the

accident occurred at 2.00 am does not mean that the appellant was not able observe how the motor

vehicle, in which she was a passenger, was moving. Counsel for the appellant referred this Court

to pages 109 to 111 and 117 to 119 of the record of appeal and emphasizes the Appellant's

testimony that the vehicle was speeding and had gone into the wrong lane. Accordingly, counsel

for the appellant argues and submits that the court below "wrongly excluded the appellant's

evidence.". Counsel for the appellant also argues and submits that the police report, which the

court below wrongly excluded from the evidence, supports and compliments the appellant's

evidence. It is contended that the appellant had duly adopted the contents of the police report

during the trial. Counsel for the appellant further refers to page 116 of the record of appeal and

submits that the appellant reaffirmed the adoption of the contents of the police report during her

cross examination. Counsel for the Appellant argues and submits that the court below should have

considered the evidence in the appellant's witness statement, the police traffic accident report as

well as the appellant's responses to questions solicited during cross examination and re-

55

examination; and that "on the totality of the evidence ... the appellant proved her case on the

balance of probabilities.".

Counsel for the respondent isolates particularly the assertion, on behalf of the appellant,

that the evidence of the appellant regarding the occurrence of the accident and who was to blame

for the occurrence of the accident was uncontroverted, and argues and submits that the Appellant

had not discharged the burden on her, on a balance of probabilities, prove the case against the

respondent. Counsel for the respondent argues and submits that the standard of proof required in

civil cases "is expressed as proof on the balance of probabilities; that if the evidence is such that

a tribunal can say: we think it more probable than not, the burden is discharged; but if the

probabilities are equal then the burden is not discharged"; that whether the evidence in a case is

controverted or not, the burden of proof rests on the party (the plaintiff or the defendant) who

[substantially asserts the affirmative of the issue; that "the burden of proof is fixed at the beginning

of the trial ... and [remains} unchanged throughout the trial [and] it never shifts in any

circumstances whatsoever.". Counsel for the respondent submits that negligence is defined as "the

omission to do something which a reasonable man guided upon those considerations which

ordinarily regulate the conduct of human affairs would do ... something which a prudent and

reasonable man would not do"; and submits that negligence has four requirements, namely, "the

existence of a duty of care [to} which the law attaches liability ffor] carelessness; breach of the

duty of care by the defendant; a causal connection between the defendant's careless conduct and

the damage; and the particular kind of damage to the particular claimant that is not so

unforeseeable as to be too remote". Based on the foregoing, counsel for the respondent argues and

submits that in this matter the burden of proof is on the appellant to adduce "evidence of facts on

which [she bases her} claim, [ and] from which negligence may be reasonably inferred, and ffrom}

which, in fact, it has been inferred"; and that the appellant must "clearly by way of evidence bring

out circumstances of failure to control the vehicle; [that} it is not in all circumstances that an

accident occurs that a driver is at fault or fails to control the vehicle; circumstances may be such

that it was impossible to suddenly control it. Circumstances of failure to control the vehicle should

come out clearly by way of evidence. ".

Counsel for the respondent refers to the assertion made, on behalf of the appellant, that the

respondent had not adduced any evidence to contradict the appellant's version on how the accident

happened, and argues and submits that the appellant was thereby, in effect, shifting the burden of

proof on the respondent to show that the respondent's insured driver was not negligent. Counsel

for the respondent disputes the assertion that the court below failed to consider the appellant's

testimony and, in effect, argues and submits based on her testimony in the court below, the

appellant had not discharged the burden of proof to show that "the accident did take place, and

that it was the respondent's insured who was at fault".

In the proceedings in court below, the appellant was the only witness who testified. The

respondent did not call any witness to testify. The record indicates that that during the hearing in

the court below the appellant adopted her witness statement dated 18 th August, 20 I I; and that the

witness statement was admitted in evidence. In so far as it is relevant to the grounds (iii), (iv) and

(ix) of the appeal, appellant's the witness statement indicates that 27th March, 2011 the Appellant

56

was a passenger in motor vehicle registration number SA 4911 Toyota Camry driven by Mr Patrick

Mkhumba, and the motor vehicle was involved in a road accident on at Blantyre City Nursery

along Mahatma Ghandi Road; that the motor vehicle was travelling from the Queen Elizabeth

Central Hospital heading to Soche East; that at Blantyre City Nursery near JT's Club opposite

College of Medicine Sports Complex the motor vehicle collided with motor vehicle registration

number TO 3883 Land Rover Station Wagon which was coming from the opposite direction; that

the accident occurred around 2.00 am; and that the motor vehicle in which she was a passenger

influenced the accident as it was travelling at an excessive speed and left its lane into the lane of

the oncoming motor vehicle;

The court record, on pages I 07 to I 11, indicates that counsel for respondent cross­

examined the appellant and the court below also asked the appellant several questions regarding

the accident. [n response to a question regarding the position on the road of the motor vehicle

registration number SA 4911, page I 08 of the record of appeal indicates that the appellant

maintained that the vehicle was "in the left lane from the Queens or College of Medicine direction

going to Soche East or Chilobwe". In response to a question asked by the court the appellant

indicated that she was fully awake (page I 09 of the record of appeal); she estimates the vehicle

was travelling at a speed of 60km (pages 110 to 111 of the record of appeal); she states that the

motor vehicle she was travelling in moved from its (the left lane) to the lane of the land rover (the

right) (page 111 of the record of appeal).

It does not seem to us, at least not during cross-examination, or in the response to questions

put to her by the court below, that the appellant's assertion that the motor vehicle in which she was

a passenger influenced the accident as it was travelling at an excessive speed and left the left-lane

and went into the lane of the on-coming motor vehicle was sufficiently discredited.

In its judgment, the court below, among other things, observed that-

"The narration of the plaintiff as to the cause of the accident is not supported by expert

evidence considering that there is no proof that the plaintiff was a driver or that she

had driven a vehicle before in order for her know with precision the speed at which the

vehicle was going and whether or not the accident took place and who caused it. Even

allowing that the plaintiff had personal knowledge of how a motor vehicle works, it is

hard to believe that at this hour precisely 2. 00 am the plaintiff's eyes were glued to the

speedometer just at the time of impact while at the same moment recording the exact

movements of both motor vehicles. ".

The court below suggests that the appellant narration of the cause of the was not credible

because it was not supported or collaborated by expert evidence; in our considered view, there is

no legal requirement that the evidence of a witness as to the cause of a road traffic accident such

as the accident herein must be supported or collaborated by expert evidence. Indeed, the evidence

of the traffic police officer who subsequently attended the scene of the accident may not

necessarily have qualified as expert evidence and, in any event, the evidence of the traffic police

officer would not have been the best evidence. With respect to the speed at which the vehicle was

travelling, the court below doubts whether the appellant could have known "with precision the

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speed at which the vehicle was travelling"; that it "is hard to believe that at this hour precisely

2. 00 am the plaintiff's eyes were glued to the speedometer just at the time of impact". Yet in

response to questions put to her by the court, the appellant indicated that at the time of the accident

she "was fully awake", and in her estimation the vehicle was driving at 60km/per hour; the

appellant's indication of the speed at which the vehicle was travelling was an estimation, not the

precise speed at which the vehicle was travelling.

One aspect of the evidence of the appellant which does not seem to have been addressed

or mentioned specifically by the court below relates to the evidence of the appellant that the vehicle

in which she was travelling left the left-lane of the road and collided with the oncoming vehicle in

the right-lane of the road. That assertion is in the appellant's witness statement and was confirmed

by the appellant during cross-examination as well as in a response to a question put to the Appellant

by the court below; and that assertion has not been discredited. Consequently, even if there may

be doubts as to the "precise speed" at which the vehicle was travelling, it is material that the vehicle

in which the appellant was travelling was speeding and left the left-lane of the road and collided

with the oncoming vehicle in the right-lane of the road.

Counsel for the respondent argues and submits that in this matter the burden of proof is on

the appellant to adduce "evidence of facts on which [she bases her] claim, [and] from which

negligence may be reasonably inferred, and [from] which, in fact, it has been inferred". We

entirely agree with the view expressed by counsel for respondent, and observe that in this case the

Appellant has sufficiently proved that the vehicle in which the she was travelling was speeding

and left the left-lane of the road and collided with the oncoming vehicle in the right-lane of the

road, and from those facts negligence may be reasonably inferred, and must, in fact, be inferred.

However, we do not subscribe to the further view expressed by counsel for the respondent that the

appellant must also "clearly by way of evidence bring out circumstances of failure to control the

vehicle; [that] it is not in all circumstances that an accident occurs that a driver is at fault or fails

to control the vehicle; circumstances may be such that it was impossible to suddenly control it.

Circumstances of failure to control the vehicle should come out clearly by way of evidence. ".

The appellant's statement of claim filed in the court below sets out the following particulars

of negligence: "(a) driving at excessive speed in the circumstances; (b) failing to keep any or any

sufficient proper outlook; (c) failure to have any or any sufficient regard to other road users; and

(d) failing to stop, to slow down, to swerve or in any other way so as to manage or control the

motor vehicle so as to avoid the collision.". In the defence to the appellant's statement of claim,

filed in court below, the respondent denied liability; the respondent averred that " ... ff at all the

accident .. .[it] was caused by negligence of the driver of motor vehicle number TO 3883 Land

Rover Station Wagon", namely, failure by the driver of motor vehicle registration number TO

3883 "to keep any proper out-look"; "to take adequate precautions when using the road"; "to

heed the presence of another motor vehicle on the ... road"; and "to take any or any adequate

measures to avoid any collision. ".

Where, as in this case, the appellant has adduced credible or sufficient evidence to prove

that the vehicle in which the she was travelling was speeding and left the left-lane of the road and

collided with the oncoming vehicle in the right-lane of the road, and from which negligence may

58

be reasonably inferred, the appellant need not by way of evidence bring out circumstances of

failure to control the vehicle. If it is the respondent's case that it is not in all circumstances that an

accident occurs that a driver is at fault or fails to control the vehicle; or that the circumstances in

this case were such that it was impossible for the respondent's insured to suddenly control the

vehicle, then the burden is on the respondent to so prove.

Furthermore, as already indicated, in its defence the respondent averred that the accident

was caused by negligence of the driver of motor vehicle number TO 3883 Land Rover Station

Wagon"; that the accident was caused by the failure by the driver of motor vehicle registration

number TO 3883 "to keep any proper out-look"; "to take adequate precautions when using the

road"; "to heed the presence of another motor vehicle on the ... road"; and "to take any or any

adequate measures to avoid any collision.". The burden was, therefore, on the respondent, not the

appellant, to prove that the accident was in fact caused by the negligence of the driver of motor

vehicle number TO 3883 Land Rover Station Wagon, and not the negligence of the respondent's

insured. However, although the respondent filed a defence in the proceedings in the court below,

the respondent opted not call any witnesses to testify in the court below, and thus failed to rebut

the appellant's evidence that the respondent's insured who was speeding and left the left-lane of

the road and collided with the oncoming vehicle number TO 3883 Land Rover Station Wagon in

the right-lane of the road.

We are, accordingly, unable to agree with the decision of the court below that the Appellant

had not "discharged her duty to prove her assertions that the accident did take place and that it

was the [Respondent's} insured who was at fault". We are of the firm view that the decision of

the court below was against the weight and totality of the evidence; grounds (iii), (iv) and (ix) of

the appeal are, accordingly, sustained.

Conclusion

We are of the firm view that, to the extent that the court below declined to find liability in

favour of the appellant principally on the grounds that the traffic police officer and/or the drivers

of the motor vehicles which were involved in a collision were not called to testify on the cause of

the accident, and treated the evidence which would have come from a traffic police officer as

expert evidence and the best evidence to prove the Appellant's case, the court below erred. We,

accordingly, sustain grounds (i) and (ii) of the appeal.

It does not appear to us that there is any merit in grounds (v), (vi) (vii) and (viii) of the

appeal, namely, that the court below erred by excluding the evidence of the police traffic accident

report on the ground that it was inadmissible on the basis of the hearsay rule; disregarding the

police traffic accident report on the ground that it was hearsay evidence when there was no

objection to its admissibility during the trial; disregarding the contents of the police traffic accident

report when the report had been adopted and formed part of the evidence of the appellant viva

voce; and deciding on the aspect of admissibility of the police report without first hearing

arguments of the parties on the issue of the admissibility of the police report. We, accordingly,

dismiss grounds (v), (vi) (vii) and (viii) of the appeal.

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With respect to whether the appellant had discharged her duty to prove her assertions that

the accident did take place and that it was the respondent's insured who was at fault for the

accident, we are of the firm view that the decision of the court below to the contrary was against

the weight and totality of the evidence. We, accordingly, sustain grounds (iii), (iv) and (ix) of the

appeal, and we reverse the decision of the court below in that regard.

We find that, on the balance of probabilities, the appellant had discharged her duty to prove her assertions that the accident did take place, and that it was the respondent's insured who was at fault for the accident; and consequently, that the Respondent liable for damages to the appellant as a result of the accident herein. We order that the Registrar in the court below shall assess damages for the appellant, as set out in the Appellant's statement of claim filed in the court below.

The appellant has substantially succeeded in this appeal, and we award costs, here and below, to the appellant.

oth day of May, 2018.

Honourable Justice L P. Chikopa, SC

Honourable Jus

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