KUDYA
J: On 10 September 2008 at around
7.30 pm the plaintiff was driving an E 200 Kompressor Mercedes Benz 1998 model
from Gweru to Harare.
At the 49 km peg, just before reaching Norton he drove into the back of a
trailer. The trailer was being towed by a tractor driven by the first defendant
during the course and scope of his employment with the second defendant. Both
the trailer and the tractor belonged to the second defendant.
THE PLEADINGS
The plaintiff issued summons against
both defendants on 25 February 2009. He sought US$30 000-00 being the
replacement value of the Mercedes Benz together with interest at the rate of
30% from the date of the accident to the date of payment in full; damages for
hiring a vehicle for his use at the rate of US$2 000-00 per month from the date
of the accident to the date of payment;
general damages for pain and suffering in the sum of US$10 000-00 from
the date of the accident to the date of payment together with interest at the
rate of 30% and costs of suit. The defendants contested the action.
In his declaration, the plaintiff
averred that the accident was caused by the negligence of the first defendant
and the unroadworthiness of both the tractor and trailer. He particularized the
negligence thus:
- The tractor driver was not licensed to drive.
- The trailer which had 30 passengers had no rear
lights despite the fact that it was around 7.30 pm.
- The driver was driving in the middle of the road
instead of the extreme left of the road
- The driver drove without due care and attention and
failed to avoid an accident when it was imminent.
- The rear lights of the tractor, even if they were on,
would have been obstructed to trailing traffic by the width of the
trailer, its height and overcrowded workers inside the trailer.
- The vehicles were not licensed to carry workers on
public roads.
He
further averred that the second defendant was negligent in using an unlicensed
and under age driver to drive an unregistered and uninsured tractor and trailer
to carry workers on a public highway and especially at night.
In their joint plea, the defendants
denied liability and disputed the particulars of negligence that were raised
against them. They averred that the accident was caused as a result of the
negligence of the plaintiff who drove at an excessive speed; failed to keep a
proper look out and attempted to overtake the tractor and trailer when it was
not safe for him to do so. While confessing that the trailer did not have rear
lights they denied that this contributed to the accident by averring that both
the trailer and tractor were visible as the tractor's hazard indicator lights
were flashing and the trailer had reflectors at the rear. They admitted that
the first defendant was not licensed but denied that this was a contributory
factor to the accident. They also put the extent and nature of the damages and
loss suffered by the plaintiff to his vehicle and person in issue.
In his replication the plaintiff
averred that he noticed the tractor drawn trailer when it was 10 -15 m in front
of him because his head lamps were on low beam as he had just passed a vehicle
traveling in the opposite direction and could not overtake as there was an on
coming vehicle. He further averred that the chevron reflectors were fixed above
one and half metres from the ground instead of the statutory “not more than one
meter and twenty centimeters”.
On 9 July 2009 the matter was
referred to trial on the following issues:
- Whether or not the accident was caused either as a
result of the negligence of the first defendant or the condition of the
tractor and trailer; or both
- Whether or not the accident was caused by the negligence
of the plaintiff
- In the event that the plaintiff and the first
defendant were both partially negligent, what are the degrees of
negligence
- What is the quantum of plaintiff's damages?
THE TRIAL
The plaintiff gave evidence in
person. He further called the evidence of his nephew Shawn Munawa who was with
him in the vehicle on the night in question. On the replacement value of his
motor vehicle he relied on the testimony of George Muzunze, a panel beater with
M and G Panel beaters and Zivanai Naggo an internal vehicle assessor with Nicoz
Diamond Insurance Brokers. The plaintiff produced thirteen documentary
exhibits. The witnesses who testified on behalf of the defendants were the
first defendant; Lovemore Ndodo, a driver with the second defendant and Anthony
Kakorera, the workshop manager of the second defendant. The defendants did not
produce any exhibits.
The plaintiff's case
The plaintiff stated that he met an
on-coming vehicle just as he came out of the curve near Triple C Company. He
reduced his speed from 100km/h to about 70 and 80 km/hr and dipped his
headlamps. He was familiar with this stretch of the road. It was common cause
that the road ahead ran straight for 800 metres. He had traveled on low beam
for 300m, when some 13 metres in front of him a large trailer “like a ghost”
loomed large in the middle of his lane of travel. He could not ascertain
whether it was moving or stationary. He rammed his brakes and although he saw
an on-coming vehicle he changed lanes hoping to drive between the trailer and
the on coming vehicle. He expected that the on coming vehicle would move to its
extreme left but it did not do so. To avert a head-on collision he consciously
went underneath the rear right corner of the trailer. His vehicle stuck to the
trailer and the two moved attached together for 19 metres before coming to a
standstill in the middle of the road. The draw bar of the trailer left a 10
metre long gorge in its wake. It was common cause that the trailer was not
licensed and did not have any rear lighting. The only safety feature on it was
a reflective chevron pattern that was between 1,3 m and 1,5 m from the ground.
It was also common cause that the road was 11,5 m wide; the tarmac beyond the
yellow line was 1,6 m wide; the flat grass verge extended for 1,4 metres beyond
the edge of the road and was bounded by the electric fence of a nearby farm.
The airbags popped out and minimized
the impact of the collision to his person. He managed to free himself. The
trailer was sitting on top of the front passenger door. His nephew who was
seated in the front passenger seat was trapped under the trailer and was
screaming in agony. He, however, was rescued by about 10 young men who were
passengers in the trailer. The Mercedes Benz was detached from the trailer with
assistance of a passing motorist who pulled it off using his vehicle. The
nephew was taken to Norton hospital with 8 passengers from the trailer. The
trailer passengers were discharged that night as they had sustained superficial
injuries but his nephew who had sustained life threatening injuries was
transferred to the Avenues Clinic in Harare.
Sergeant Makarutse, a police
officer, attended the scene and took a statement from him and compiled the
sketch plan produced as exh 1. The second defendant's manager came to the scene
on a motor cycle. The driver of the tractor could not be found. On the
instructions of the attending police detail, the manager switched the lights of
the tractor on. The front lights were working as was one tail light. The other
tail light was missing. He did not know whether it had been damaged during the
accident or not. He was unsure whether the indicators of the tractor were
flashing. He said even if they were, they emitted very soft light which was
obliterated by the glare of the full beam of the on coming vehicle. He further
stated that he could not see the tail and flashing hazard indicator lights of
the tractor from behind as his vision was blocked by the height of the trailer,
its passengers and cargo.
He stated that the accident was
caused by the absence of lighting on the trailer to warn vehicles traveling
behind it of its presence on the road and the failure by the driver of the
tractor to keep to the extreme left of the road. He produced exh 2, the three
admissions of guilty fines paid by the first defendant for drawing a trailer
which did not have tail lights; for carrying passengers in the trailer drawn by
a tractor on a public road and for not carrying a tractor driver's permit on
his person.
It
was common cause that the front portion of the Mercedes Benz was extensively
damaged. The electrics and computer box were destroyed; the chassis was bent
and jammed the front left wheel, the roof and front passenger door were
damaged. The air bags popped out and the dash board was destroyed. He produced
exh 3, the photograph showing the mangled sight of the Mercedes Benz after the
accident. The damage was concentrated towards the left front side covering the
lights, grill, and front bumper, left front fender, left front wheel house,
bonnet, roof, the left front roof panel, the front chassis and suspension. The
windscreen was shattered. The vehicle inspection report of 18 September 2008
gives in detail the damage observed by a vehicle inspector attached to the
Vehicle Inspection Department. In contrast, exh 8, the photograph of the same
vehicle shows that the rear and the right side of the vehicle were not damaged.
He produced photographs of the tractor, exh 9, and 13 and of the trailer as
part of exh 9. He photographed the road on which the accident happened and
produced exh 12 to highlight the gorge left on the tarmac by the tow hitch.
He took the wreck to two panel
beaters and spray painters on 23 and 24 February 2009. Exhibit 6 indicates that
these companies, that is, M and G Panel Beaters and Spray Painters and The
River Between Enterprises considered the vehicle a complete write off. This
view was confirmed by his insurer Nicoz Diamond Limited on 24 February 2009. His insurer assessed the value of the damaged
Mercedes Benz at US$25 000-00. Exhibit 7 demonstrated that the replacement
value of the Mercedes Benz, inclusive of freight and duties was US$25 000-00.
Exhibit 7 consists of two quotations obtained from two used car dealers and an
engineer's report that was complied by the plaintiff's insurer. The correctness
of the assessments was affirmed by the testimony of Zivanai Naggo. The
plaintiff sold the wreck on 7 May 2009 for US$2 000-00 to Parktown Car breakers,
who were the highest bidder amongst the three car breakers whom he approached.
He alleged that he had purchased the car six months before the accident for
US$14 000-00 in Durban
and had expended more than US$30 000-00 in freight, duty and other charges in importing
it into the country. He sought damages of US$30 000-00 for the loss of the
vehicle.
He averred that he was physically
shaken by the impact of the accident. He did not break any bones. He was
treated for pain and shock. As a result of the accident, he suffers from a
consistent back pain and finds it hard to bend. Two weeks before the
commencement of trial he consulted his personal physician. He was told he had
to take anti-inflammatory drugs for the rest of his natural life. He is 59 and
he takes them at the rate of three a week. He believed US$10 000-00 was fair
compensation for the pain, trauma and shock arising out of accident. He was
responsible for the hospitalization and treatment of Shawn Munawa. He did not
produce any documentation to show the nature and extent of both their injuries.
He also sought US$2 000-00 per month as the reasonable cost of hiring a
replacement motor vehicle for his use in his farming activities. He produced
exh 10, an agreement for the hiring of a vehicle at the rate of US$2 000-00
that he executed on 1 October 2008 with Mbudaya Enterprises (Pvt) Ltd for a
Land Rover Defender. He is the managing director of that company. He said he
hired it six months after the accident after his claim had been rebuffed by the
defendants and used it for six months until the company's indebtedness to him of US$12 000-00 had been
extinguished.
He is facing criminal charges of
negligent driving, which were suspended by this court on 3 February 2010,
pending the conclusion of the present matter.
He was cross examined. He revealed
that his lights and power brakes were in perfect condition. He provided the
basis for his averment that he was traveling at between 70 km/hr and 80 km/h as
being the fact that he managed to stop after pushing the trailer for 10 m. He
estimated that the two lanes could both accommodate four vehicles and not just
two. He stated that the hazard indicator lights on the tractor were 1.5 m above
the ground and disputed that the height of the trailer was 1.4 m. He insisted
that it was the same height as the tractor. He denied that the chevron was1.7 m
long but did not dispute it was 19 cm wide. He stated that he could not see the
chevron pattern with a low beam. He stated that though the lights of the on
coming vehicle were on full beam he did not see the tractor and its trailer. He
supplied three reasons for electing to drive in the face of the on-coming
vehicle instead of moving to the extreme left of his lane. These were his fear
of either landing in a ditch or being electrocuted by the nearby electric fence
or crashing into a diagonally parked broken down truck. He maintained that when
he suddenly saw the trailer he applied his full brakes and tried to squeeze
between the trailer and the on coming vehicle. He denied the presence of any
vehicle on the road in front of him that overtook the tractor.
He was offered US$1 000-00 by one
car breaker and US$1 500-00 by another for the wreck. He settled for the US$2
000-00 offered by Parktown Car breakers.
He did not seek independent evidence on the reasonable cost of hiring a
vehicle before executing exh 10. He was not referred to a specialist for
treatment.
He called Shawn Munawa. He was 14 at
the time of the accident. He could only say he remembered seeing the chevron
pattern of the trailer before the Mercedes Benz hit the trailer. Under cross
examination he said the plaintiff tried to go to the right of the trailer but
saw an on coming vehicle which caused him to suddenly reduce speed before he
went under the trailer. He was not a useful witness to the plaintiff as he
suffered concussion which affected his ability to make useful observations of
what transpired before, during and after the collision.
George Muzunze was called to
establish the salvage value of the plaintiff's vehicle. He has been in the
panel beating industry since 1974. It was his expert opinion that the cost of
repairing the Mercedes Benz would be higher than the cost of buying another
similar model. It would have been difficult to restore it to its pre-accident
state. He placed the salvage value at between US$1 500-00 and US$2 000-00.
Zivanai Naggo of Nicoz Diamond holds
a certificate in Motor Vehicle Body repairs from a local technical college and
a Class 1 journeyman certificate in the same field. He confirmed that the
Mercedes Benz was damaged beyond repair. He estimated its pre-accident value at
US$25 000-00. He arrived at this estimate after surfing through the internet
and consulting local used car dealers for the cost of a comparable model.
The plaintiff' version on how the
accident occurred was not corroborated by the testimony of Shawn Munawa. Shawn
was disoriented in the witness box. He had no recollection of what happened.
This may have been due to the concussion that he sustained. He, however,
intimated that the plaintiff only reduced speed when he saw the on-coming
vehicle. There were disquieting features in the plaintiff's version. He was
driving a top of the range Mercedes Benz on a clear night. He was traveling on
a straight stretch of the road. His testimony and the submissions made by his
legal practitioner, Mr Mabulala,
demonstrated that he calculated his speed from the distance that his vehicle
stopped after the collision. He calculated the speed of 70-80km/h from the
gorge marks of 10 metres long and not the 19 metres left by his tyre marks. It
was common cause that the tyre marks started from the point of impact. Applying
his own method of calculation; he would have been traveling at double the speed
he indicated. If his calculations were correct they would reflect that he was
traveling at a speed which was twice than the one he deposed to. His speed
would have been between 140 km/h and 160 km/h. More importantly, by relying on
the distance traveled by the vehicles after impact to calculate his speed, he
demonstrated that he was not paying attention to his speedometer and did not
know the actual speed he was traveling at when the collision occurred. The tone
of his version indicated that he commenced to overtake but returned his lane
and hit the trailer because he had misjudged the distance of the approaching
vehicle. His reasons for failing to see the tractor were unclear. He stated
that the headlamps of the approaching vehicle were on full beam. In my view he
ought to have noticed the presence of the tractor and trailer much earlier from
the light cast by the on coming vehicle. He did not explain why he kept his
headlamps deflected in the face of the full beam. As he was on a straight
stretch of the road the reasonable action for him to take would have been to
flash his full beam at the approaching car to warn it to deflect its dazzling
beam. Had he taken this precaution, on his version, he would have seen the
trailer much earlier. The plaintiff's version that he violently braked when he
was about 13 metres from the trailer was at variance with that of his witness
who stated that he braked when he observed the on-coming vehicle as he was
overtaking the trailer. It was also negated by the absence of any evidence of
violent braking on the tarmac before the impact. Mr Kurawley, for the defendants, made various valid criticisms of the
plaintiff's conduct based on probabilities of the case which I will advert to
when I determine the issue of liability.
While I did not believe the version
of the plaintiff on how the accident happened his testimony on the measure of
his damages for the value of his vehicle at the time of the delict and of
hiring a vehicle for his use for six months was credible.
The evidence that he called on the
measure of damages in regards to the pre-accident value of the motor vehicle
was not seriously challenged in cross examination. While he did not produce any
documentary proof of the cost of purchase, freight and import and registration
charges, the expert witness, Naggo, the insurance assessor, demonstrated by his
oral testimony the methodology he used to arrive at the pre-accident value. It
was common cause that the vehicle was a write off. Mr Kurawley conceded that the salvage value of the vehicle was US$2
000-00. He also conceded that the measure of damages for the vehicle would be
the difference between the pre-accident value and the salvage value. Mr Mabulala initially submitted that the
loss suffered by the plaintiff was in the sum of US$28 000-00 but conceded that
in the light of the expert evidence it was US$23 000-00. I would find on the
evidence of the expert witness that the loss suffered by the plaintiff for the damage
to his vehicle was in the sum of US$23 000-00.
On the claim for hiring an
alternative vehicle for his use, Mr Kurawley
conceded that the plaintiff was entitled to claim under this head. He, however,
averred that the plaintiff had failed to lead evidence to show that the amount
of US$2 000-00 per month was a fair and reasonable cost for hiring a motor
vehicle for his use. The agreement was entered into between the plaintiff and
the company for which he is the managing director. The close relationship
between the plaintiff and the hiring company may raise eye brows but its
authenticity was not put in issue during cross examination. The defendants did
not suggest that the figure agreed to was outside the normal market rates
prevailing from March to September 2009 the period for which the vehicle was
hired. Neither did the defendants challenge the existence of the indebtedness.
In the light of these views, I would have been satisfied that the plaintiff
established the loss of US$12 000-00 for hiring the vehicle.
On the claim for pain and suffering
of US$10 000-00, Mr Kurawley
correctly submitted that in the absence of medical evidence, the plaintiff
failed to prove and justify his claim. I would grant absolution from the
instance under this head.
However, judgment on the amount of
damages that he suffered is dependent on whether the defendants are liable for
his losses.
The defendants' case
The first defendant had the
authority of the second defendant to drive its tractor though he was not a
licensed driver or the holder of a written permit. He had been driving the
tractor for three years. On the day in question he was instructed by Anthony
Kakorera, the second defendant's workshop manager, to drive about 30 farm employees
from the farm to their homes in Norton. He was drawing a seven meter long
trailer which had a one and half meter long draw bar. He satisfied himself that
all the passengers were seated in the pan of the trailer before he left the
farm. At about 7:30 pm he drove into the Harare-Bulawayo road and proceeded
towards Norton at a speed of 25 km/hr. He drove in the middle of his lane of
travel. His trailer was not licensed. It did not have tail lights or any form
of rear lighting. It had a large reflective 1,7 metres long and 19 centimetres
wide reflex reflector with a chevron pattern affixed to its tail gate. The
headlamps of the tractor were on. The tractor had park and indicator lights on
the front section of each mudguard and tail and indicator lights on the back
section of each mudguard. The park and tail lights were on. The indicator
lights were all on hazard and were flashing. The flashing served to warn both
on coming and overtaking vehicles of the potential danger posed by the unlit
trailer drawn by the tractor.
He had traveled for 200 m to 300 m
along the road when he was overtaken by two speeding vehicles. He observed that
the indicators of the two overtaking vehicles were on as they raced past him.
He saw an on-coming vehicle. As this vehicle was passing another vehicle
traveling from behind him collided with his trailer. The draw bars of the
tractor fell. The draw bar of the trailer was raised and it struck and broke
the tail and indicator lights on the left mudguard of the tractor. The tractor
swerved to the right and automatically engaged the neutral gear as a result of
the impact. The tractor careened into the lane of on coming traffic and halted
on the grass verge with its lights on; still facing its original direction of
travel. He disembarked from the tractor and sat on the ground in daze and
shock.
It was his testimony that the point
of impact was on the right side of the trailer but at the back, close to the
right wheel and axle. He maintained that the trailer was not hit from the rear.
He pointed to a spot behind the plaintiff but next to the tree on the
photograph of the trailer that was produced as exh 9. He believed that the
plaintiff was racing with the other two vehicles that overtook him before the
accident; tried to overtake the trailer but was forced to return to his lane by
the proximity of the on-coming vehicle and in the process went under the
trailer.
He did not change his story under
cross examination. He denied that the accident was caused by any of the
illegalities that he committed that night. He denied that these illegalities
constituted negligence. He maintained that there was nothing amiss about his
manner of driving. He maintained that the trailer was lower than the tractor
and averred that any motorist who was traveling behind him would have observed
the neon light cast by the flashing hazard indicators of his moving tractor. He
disputed that the trailer was wider than the tractor. He denied that the
tractor careened for 81 m but insisted it did so diagonally for 30 m.
The first defendant's version of
events was confirmed by Lovemore Ndodo, a licensed driver and an employee of
the second defendant who was seated in the trailer on the fateful night. He was
seated on the floor at the front right corner of the trailer facing the
direction they were coming from. He had an unimpeded view of the road behind
the trailer. He saw the two vehicles that overtook them. He observed the
plaintiff's attempt to overtake the trailer and his sudden swerve back to his
lane to avoid an on coming vehicle. The plaintiff hit the back of the right
side of the trailer. The trailer rose and its disengaged draw bar hit the
mudguard of the tractor. The draw bar of the tractor broke and the tractor
moved to the off side lane and stopped on the grass verge with its lights on.
Under cross examination he
maintained his version. He did not see the plaintiff dip his lights. He
demonstrated the position on the right side of the trailer that was hit by the
plaintiff much as had been done by the first defendant. He assisted in rescuing
Shawn Munawa from the plaintiff's vehicle. He was adamant that the plaintiff
did not brake before the accident. He formed the opinion that the plaintiff was
speeding from the effects of the collision. These were that the impact broke
the draw bar and dislodged the tractor from the trailer; deflated the right
back wheel of the trailer and thereafter the plaintiff's vehicle pushed the
trailer with 30 passengers for 19 m leaving a 10 m long gorge on the tarmac.
Anthony Kakorera, the second
defendant's workshop manager, authorised the plaintiff to drive the farm
workers to Norton. The lorry which often did so had broken down and he was
repairing it. He was not aware that Lovemore Ndodo was at the farm as he was
off duty on that day. He accepted that the trailer was deficient in all the
respects that were enumerated by the plaintiff. He arrived at the scene of
accident on a motor cycle and found the attending police detail present. He
found the tractor idling with its lights on. He switched off the engine and the
lights. He maintained his version during cross examination. He further denied
that the accident was caused by the defects on the trailer or the absence of a
driver's licence from the first defendant.
The first defendant gave a straight
forward account of what transpired. That account was confirmed by Ndodo and
Kakorera. I am aware that by virtue of their employment with the second
defendant, these witnesses could have colluded to give complementary evidence.
It was, however, the duty of the plaintiff to expose their complicity through
cross examination. Their evidence was consistent both in-chief and under cross
examination. They were honest on their shortcomings. Ndodo's version on the
stage at which the plaintiff braked was confirmed by the plaintiff's own
witness, Shawn Munawa. Their versions were unscathed by cross examination. The
probabilities supported their testimonies. I believed them.
THE RESOLUTION OF THE ISSUE OF LIABILTY
I proceed to determine the issue of liability in the light of the
evidence led and the submissions made at the trial.
Whether or not the accident was caused either as result of the
negligence of the first defendant or the condition of the tractor and trailer; or
by both
The onus to prove that the collision
was caused by the first defendant's manner of driving or by the use of an
unroadworthy trailer and tractor lies on the plaintiff. It was common cause
that the first defendant neither possessed a driver's licence nor a permit
issued in terms of s 8 (2) (a) of the Road Traffic Act [Cap 13:11] to drive a tractor on public roads. It was also common
cause that he was driving the tractor in the middle of his lane of travel and
not on the extreme left of that lane. The plaintiff failed to establish how the
failure to hold a drivers' licence or permit affected the manner in which the
first defendant drove the tractor and trailer that night. Mr Mabulala for the plaintiff argued that
as the second defendant was driving a slow moving vehicle, he ought to have
hugged the extreme left of the lane. He contended that had the first defendant
done so, the plaintiff would have been able to drive on without fear of a head
on collision with the on-coming vehicle. The first defendant explained that the
local police had in outreach programmes that targeted tractor drivers in the
area exhorted them to drive in the middle of their correct lane to avoid
accidents caused by drivers who sought to squeeze through as the plaintiff
wanted to do on the fateful night. It seems to me that once the second
defendant was on the road, he had the same legal rights, privileges and
responsibilities conferred on any driver by the law. He was entitled to drive
on the left lane. It was the first defendant and Ndodo's uncontroverted
testimony that two other vehicles had overtaken the tractor and trailer while
traveling in the middle of its lane without any mishap. It was apparent from
the plaintiff's version that the tractor driver maintained a steady course. The
plaintiff neither stated nor suggested that the second defendant meandered from
his initial course into the plaintiff's path when he commenced to overtake. It
was submitted that he failed to keep a proper control of the tractor after the
accident because it stopped 81 m from the scene of the accident and on the
opposite side of the road. It was common cause that after impact the draw bar
of the trailer disengaged from the tow hitch and the tractor engaged the
neutral gear. The careening of the tractor off course did not cause the
collision; rather it was caused by the collision. The second defendant
explained that he was shocked and dazed by the collision but he still managed
to stop the tractor on the other side of the road without any mishap. It seems
to me that the first defendant's manner of driving both before and after the
collision cannot be faulted. The plaintiff failed to establish negligence in
the manner the second defendant drove the tractor and trailer.
The plaintiff further contended that
the collision was caused by the unroadworthiness of the trailer. It was common
cause that the trailer did not have any rear lighting. It was common cause that
there was a reflex reflector in the form of a chevron pattern which was 1, 7 m
long and 19 cm wide that was affixed some 1, 3 m from the ground-level. Neither the trailer nor the tractor was
registered. The first defendant conceded the shortcomings that were on the
trailer. Both the first defendant and Ndodo maintained that the head lamps of
the tractor were on as were the four hazard flashing lights on the big wheel of
the tractor. The hazards were flashing as a warning to traffic behind and in
front that there was danger lurking on the road. That these lights were
functioning was affirmed by the farm manage. Although the plaintiff suggested
that they were switched on by the farm manager at the request of the attending
police officer, he confirmed that they were functioning. The plaintiff failed
to explain why he did not observe these flashing hazard indicators. He
suggested that his view was obstructed by passengers who were seated inside the
trailer. He failed to explain why he failed to observe the amber light waves
that were cast by the flashing hazard indicators.
In his declaration, the plaintiff
portrayed the impression that he did not observe the flashing hazard lights. I
did not believe his testimony that the hazards were off. It seems to me that he
saw the tractor in time and commenced to overtake. It was only while he was
doing so that he realized that he had misjudged the distance of the on-coming
vehicle and he had no option but to drive under the right hand side of the
trailer towards the rear. In my view the accident was not caused by the
unroadworthiness of the trailer.
I agree with the submission made by
Mr Kurawley that the plaintiff's
version of events was highly improbable. He alleged that the trailer suddenly
appeared like a ghost in front of him when he was 13m away from it; yet there
were no tyre marks to indicate that he applied emergency power brakes between
the observation and impact points. The tyre marks only start at the point of
impact and run for the 19 metres that he pushed the trailer. It was highly
improbable that a man of his driving experience would on suddenly seeing a
trailer in front of him risk a head on collision with an on-coming vehicle by
failing to drive to his extreme left. His explanation that he feared that there
might have been a broken down truck blocking the extreme left did not make
sense to me. As it turned out there was no such truck. Again, his explanation
that he feared hitting against the electric fence that demarcated the farm
boundary was devoid of any reasoning. He was familiar with the stretch of the
road. He knew there were no ditches. These explanations were after thoughts
that he contrived in order to explain his failure to act as a reasonable driver
in his shoes would have done. When these improbabilities are juxtaposed against
the distance that his vehicle pushed the trailer with 30 people and uncoupled
the tractor tearing of its rear left lights, and breaking a draw bar, the
inescapable conclusion is that he was flying on the road. If the methodology he
used in calculating his speed was correct, he was traveling at a speed of
between 140 km/h and 160 km/h. At such a speed, indeed, the trailer would have
suddenly appeared as an apparition. He drove at an excessive speed, failed to
keep a proper lookout and attempted to overtake when it was not safe to do so.
I am satisfied that he was racing after the other two vehicles that overtook
the tractor. He must have seen them overtaking the tractor. It seemed to me
that the defendants were correct in their averments and testimony that the
plaintiff was the sole cause of the accident.
Mr Mabulala further submitted that the
failure to follow the provisions of s 6 (1) the Vehicle Registration and
Licensing Act [Cap 13:14] was
adequate proof of the defendant's negligence. Section 6 reads:
6 Vehicles to be
used on roads to be registered
(1) Every vehicle which is to be used on any
road shall be registered in terms of this Act.
(2) If an owner of a
vehicle referred to in subsection (1) fails to register it in terms of this
Act, he shall be guilty of an offence and liable to a fine not exceeding level
four or to imprisonment for a period not exceeding three months or to both such
fine and such imprisonment.
(3) For the purposes of this section, a vehicle shall not be
regarded as being used on any road—
(a)
if it—
(i) Is owned by a farmer
or miner; and
(ii) is used exclusively on
roads which are within the boundary of the farm or mine of the owner or,
in the case of a
tractor or trailer, is used exclusively on roads within the area consisting of
the farm or mine of the owner and the belt ten kilometers in width immediately
outside the boundary of such farm or mine; and
(iii) is used exclusively
for the farming or mining purposes of the owner;
or
(b) … .(not
relevant)
While subs (1) of s 6 of the Vehicle
Registration and Licensing Act, supra,
provides for the mandatory registration of every vehicle that is to be used on
any road, subs (3) of the same section specifically exempts from registration a
tractor or trailer that is exclusively used on the roads within the farm or
mine and in a ten kilometer radius outside the boundary of the farm or mine and
is used exclusively for farming and mining purposes. In the present matter, the
plaintiff did not prove that the exemption did not apply to the tractor and
trailer in question. That alleged ground of negligence would not avail him.
Mr Mabulala further submitted that the defendants contravened the
provisions of s 35 of the Road Traffic (Construction, Equipment and Use)
Regulations RGN 412 /1972 in that the chevron pattern at the rear of the
trailer was in excess of 1, 2 metres from the ground level. Section 35 provides
for the positioning of a white reflex reflector at the front of a tractor. The
section which deals with rear reflectors on trailers is s 39. This subsection
is made subject to the requirements of s 29 of the same regulations and
provides for the transfixing of a reflex reflector to the rear of a trailer not
less than 300 millimetres and not more than 1,2 metres from the ground
level. Section 29 requires that such a
reflex reflector fixed to a trailer should have an area of 3 000 square
millimetres and be visible at night at a distance of at least 50 m when
illuminated by two headlamps on full beam. It does not provide for a chevron
pattern. The provision of a chevron pattern is dealt with in s 34 of the same
regulations. Subsection (2) of s 34 provides for the placing of the chevron
pattern on heavy vehicles such that its lower edge is not less than
300millimetres and its upper edge not more than 1,2 metres from the
ground-level. It, however, through the medium of a proviso allows for
substantial compliance where “the structure of the vehicle is such that it is
not possible to comply with the provisions of this subsection”. In the present
matter the chevron pattern at the rear of the tractor was “so placed as to
comply as is reasonable possible” with subs (2) of s 34 of the regulations. The
plaintiff conceded that were his headlamps on full beam he would have seen the
trailer much earlier than he alleged he did.
In my view, the collision was not
caused by the absence of rear lighting or the defects the defendants admitted
were on the trailer but by the error of judgment of the plaintiff who decided
to overtake the tractor he knew was on the road in the face of an on-coming
vehicle. I find that the plaintiff was the sole cause of the accident. He was
the author of his own misfortune. I do not find the defendants liable in any
way for the collision and the subsequent damages that the plaintiff sustained.
Accordingly, the plaintiff's claim
is dismissed with costs.
Mabulala & Motsi, plaintiff's legal practitioners
Gollop & Blank, the defendants' legal practitioners
