Written by:
Nyboma Ian|LL.B Hons (Moi)|PGD (KSL)| Bar Candidate
SILAS MUTUA MBERIA v MUTHONI NJUE VERONICA (2021) eKLR
Are the recommendations of an accident assessor final?
The following is an analysis of the decision of Justice Patrick Otieno in the case above.
Weight of evidence and the court’s discretion
While making judicial decisions, courts evaluate the evidence of experts. The objective is to inform the court. Normally, a court would not have complete expertise on all matters. Often, such expert testimony complements the material evidence or other testimony on record. It may be tendered in form of reports, including accident assessor’s reports.
Usually, courts view reports as merely persuasive. This means that although the court will consider the evidence, it may choose to disregard it. The case above clarified that courts must follow the evidence of assessor’s if it is credible and certain.
Over time, through a string of decisions, an assessor’s report has gained evidentiary mileage in personal injury litigation. On 11th August 2021, Otieno J. reiterated that accident assessor’s reports are significantly persuasive. A court may well be bound by a credible assessor’s report.
Purpose of assessor’s reports
An assessor’s report has two major functions. The first is to show the extent of damage. It outlines details of the damaged parts. An assessor’s report simply shows what has been lost.
The second is to estimate the cost of repairs. This helps the court to establish appropriate compensation for any loss. This is why assessor’s reports bear significant probative/evidentiary value.
Standard of proof
A claimant only needs to prove damage and the value of repairs on a balance of probabilities. One must not prove the repairs themselves. Accordingly, it does not matter whether the repairs have or have not been done. The court, for example, relied on precedent (David Bagine v Martin Bundi [1996] eKLR) to hold that receipts or other proof of repairs are not necessary where an assessor’s report is produced.
Every injury has a remedy
The judge observed that ignoring an unchallenged assessor’s report amounts to an injustice. More specifically, it is akin to sending an injured claimant on their way without remedy, despite proof of injury.
Restore the vehicle to its previous value
Otieno J. added that where repairs are uneconomical, it is prudent to compensate for the pre-accident value of a damaged vehicle.
Conclusion
- Courts are likely to rely on assessor’s reports while assessing damages.
- Assessor’s reports do not prove already incurred expense.
- Assessor’s reports only prove the extent of expense.
- Assessor’s reports are important to restorative justice.
Ask us any questions on any legal issue.
So elaborate.. Also very insightful. Truly enjoyed reading this
Thank you Koile. We are keen to provide legal and academic resource for our kind readers, clients, partners, and learned colleagues.
This is very informative. It embodies why legal practitioners refer to themselves as “learned friends,” as it encompasses other areas of expertise in solving legal dispute and courts are alive to that fact. Keep up the good work Ian. An informed citizenry is a healthy democracy.
Thank you, Michael.
As an ADR champion, our firm is glad to receive and share insight on legal matters. Credible accident assessment reports can go a long way to achieve the ADR functions of our legal system.
This is quite informative Mr. Ian Nyboma. I believe the article shades more light to the provisions of Section 48 of the Evidence Act on the admissibility of evidence by experts generally. The question that emerges is in circumstances where both the plaintiff and defendant adduce two conflicting assessor’s reports. What guides the court in exercising it’s discretion of admitting one of the report ?
Thank you for your interest and insight, Alvin. While exercising discretion, on any subject, courts strive to apply themselves judiciously. Concerning assessment reports, a court would check for the credibility of a report. Observe, from the analysis of the case above, that Otieno J. emphasized the lack of challenge against a report or its credibility.
You are right to note that both parties may submit assessment reports. Ideally, both reports would be raised in a bid to agree on compensation for damage without having to sustain a suit. It is a critical step toward generating consents. Equally, a report may be submitted to counter another in the most adversarial sense of litigation.
Like other civil cases, the standard is one of a balance of probability. While comparing two reports, therefore, a court would admit the more credible report, or choose more credible entries in a report over less reasonable alternatives.
For example, an assessment report may contain entries on; insurance details, vehicle details, pre-accident condition, and cost of repairs. The first two may go undisputed. On pre-accident condition, items such as the serviceability of brakes or percentages of wear on tyres may be discussed. The court is likely to accept a logical initial report on these items. On the cost of repairs, a court may harmonize the prices proposed by both reports in light of the market conditions of the moment.