THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

DEPARTMENT OF LAW

NAME :RICHARD SAKALA

SIN :22112237

PROGRAMME :BACHELORS DEGREE IN LAW

TASK :ASSIGNMENT TWO

COURSE :REMEDIES IN PRIVATE LAW

CODE :LS161

LECTURER :MR FRANCIS TAFENI

DUE DATE :12TH MAY 2023

QUESTION

On 19th May 2022, an Advanced Transport Limited motor vehicle, a Mercedes Benz Truck,
was involved in a road traffic accident with an Airmark Carriers Limited motor vehicle, a
Freightliner truck, along the Kitwe-Chingola Road that resulted in extensive damage to the
Advanced vehicle. The Airmark truck driver was at fault and admitted to negligent driving.
Advanced obtained one quotation from a reputable garage in Kitwe which indicated that
the Benz truck could not be repaired because of lack of spares for that model of a vehicle.
As a result on 30th May 2022 Advanced placed the damaged truck on a flat bed trailer and
had it transported to South Africa for repairs. The decision to take the vehicle to South
Africa was taken in a speedy manner to avoid further loss of use of the damaged vehicle.

The cost of towing the vehicle from the accident scene to the Advanced Transport
workshop was K2,000 and the cost of transportation to South Africa was USD3,000. The
repairs in South Africa costs ZAR196,560.75. A Police Report cost K50.

Advanced demanded for refund of expenses incurred as indicated above but Airmark
refused to pay on the grounds that they did not have chance to carry out their own
assessment of the damage to the vehicle before it was taken to South Africa. As a result,
Advanced sued Airmark in the High Court demanding damages in the sums indicated.

The High Court judge refused to grant Advanced the damages for transportation to South
Africa and cost of repairs in South Africa on the premises that Airmark did not have the
opportunity to view the vehicle before it was taken to South Africa.

Advanced are dissatisfied with the decision of the High Court wish to appeal to the Court
of Appeal. They have come to you for advice on whether they were wrong to transport the
vehicle to South Africa and whether the cost of transportation and repairs in South Africa
should have been awarded to them by the High Court judge.

Advise Advance Transport Limited.

The following legal issues can be derived from the question which will be tackled in this essay (1)
Whether or not Advanced Transport Limited were wrong to transport the vehicle to South Africa
for repairs (2) Whether or not the cost of the transportation and repairs in South Africa should have
been awarded to them by the High Court Judge (3) Whether or not Advanced Transport Limited
should appeal against the decision of the High Court to the Court of appeal.

With reference to the first legal issue,the Common law imposes a duty on the non-breaching party
to take reasonable steps and efforts to avoid further loss from happening to him or their
property.The duty to mitigate damage is a Contractual concept that simply means that the party
who did not breach a contract cannot take advantage of the breach.This duty aims mostly at
preventing recovery of any damages that could have been reasonably avoided by applying
reasonable measures and steps.

Mcgregor on Damages on pages 150 gives us a principle meaning of the term Mitigation,he
said,’’Mitigation with which will alone this chapter deals with,concerns the avoiding of the
consequences of a wrong,whether a tort or breach of Contract and forms probably the only exact
use of the term1.This principle was emphasized in the Zambian case of Tryson Mtonga v Warren
Ngambi2 where the court emphasized that the duty is on the plaintiff to mitigate his loss.Further,the
court borrowed the words of Mcgregor on Damages that the first and most important rule is that
the plaintiff must take all reasonable steps to mitigate the loss to him consequent upon the
defendant wrong doing and cannot recover damages for any such loss which he could have avoided
but failed through unreasonable actions or inaction to avoid,put shortly,the plaintiff cannot recover
for avoidable loss.

Therefore,it is preferable in the interest of finality to say that Advanced Transport limited were not
wrong to transport the vehicle to South Africa as they were simply mitigating any further loss from
happening.Further,the truck that was damaged being a profit-making property imposed an
obligation on the Advanced to minimize their loss.Similar sentiments were seen in the case of
Eastern Cooperative Union Limited v Yamene Transport Limited3 where it was held that in
keeping with the principles which require a plaintiff to mitigate his loss, a plaintiff who has a

1
James Edelman, Mcgregor on Damages,revised 14th edition,Sweet and Maxwell,Australia
2
Appeal No.27/2011/SC28/272/2010
3
[1989] S.J (S.C) No.3 of 1989
profit-making chattel damaged beyond repair is under obligation to replace the chattel.This was
also seen in the cases of Camco Equipment v Percy Chanda4 and National Airports Coorporation
Limited v Reggie Ephraim Zimba and Saviour Konnie5.Further,Advanced initially consulted
from a reputable garage from where they learnt that the truck couldn’t be repaired as a result of
lack of repairs meaning that the only solution was taking the truck to South Africa.This reasonable
step of taking the truck to South Africa qualifies Mcgregor definition on damages that the first and
most important rule is that the plaintiff must take all reasonable steps to mitigate the loss of which
Advanced did after diligently consulting.

With respect to the second legal issue,the Common law provides compensation or reward for
incidental loss.Incidental loss includes expenditures that the wronged party incurs in attempting to
minimize the loss that flows from a breach or tort.The cost of transportation and repairs in South
Africa that Advanced incurred while trying to avoid further loss is a good example of incidental
loss.This is so because Advanced while trying to avoid further damage to their truck had to pay a
premium or special fees in transporting it to South Africa and repairing it in a timely manner.

Therefore,given the concerns that Advanced Transport limited had,the High court judge should
have awarded them the cost of transportation and repairs to South Africa as Incidental
damages.This is so because as mentioned earlier,this is the loss that they incurred while trying to
avoid further loss or damage from happening to their property.I seek further authority from the
case of the Hachibeka Habaad and NAPSA v Ronald Nsokoshi6 where the Court entered
Judgement in favour of the appealant and in which among other things,awarded the plaintiff refund
of transport to the plaintiff.

Regarding the last legal issue,Advanced transport limited have a right as at law to appeal against
the decision of the High Court Judge to the Court of Appeal.This is because firstly as seen in the
first legal issue,their step of taking the truck to South Africa after diligently inquiring shows the
principle of avoidance consequence or mitigation of damage that if they had not done it,it would
result into them not recovering the loss that could have reasonably been mitigated.In addition,as it
was seem from the second legal issue,Advanced transport limited was entitled to the cost of repairs

4
Appeal No.21/2017
5
[2000] ZR 154
6
Appeal No.42 of 2011
and transportation to South Africa as incidental damages.This is so because this is the money that
they spent while preventing any further loss from happening to their truck.

Therefore,with these weighty facts and grounds given,I advise Advance transport limited to appeal
to the Court of Appeal for redress and to claim the damages that the High Court did not award
them for the cost of transportation and repairs in South Africa.
Bibliography

CASES

Camco Equipment v Percy Chanda Appeal No.21/2017

Eastern Cooperative Union limited v Yamene Transport Limited [1989] S.J (S.C) No.3 of 1989

Hachibeka Habaad & NAPSA V Ronald Nsokoshi Appeal No.42 of 2011

National Airports Coorporation Limited v Reggie Ephraim Zimba and Saviour Konnie [2000] ZR
154

Tryson Mtonga v Warren Ngambi Appeal No.27/2011/SC 28/272/2010

BOOKS

Charles E.F.Rickett (ed),Justifying Private Law Remedies,(Hart Publishing) 2000

H.Beale (ed),Chitty on Contracts,32nd edition,(Sweet and Maxwell,London) 2015

James Edelman, Mcgregor on Damages,revised 14th edition,Sweet and Maxwell,Australia

Research Handbook on Remedies in Private law(Edward Elgar Publishing

Limited,Chaltenham)2019