MATHONSI J: On a bitterly cold winter night of 18 July
2009, the plaintiff's semi luxury coach, a scania registration number AAZ7875
driven by Albert Bendura which plies the Harare – Lusaka route, was on a
routine return trip from Lusaka Zambia along the Harare / Chirundu road and had
just taken off from Karoi, when it was involved in a collision with an AVM
omnibus registration number AAF5935 belonging to the second defendant which was
being driven by the first defendant.
The plaintiff is a public carrier operating a passenger service between Harare
and Lusaka Zambia, while the second defendant is also a public carrier running
a passenger service under the style Mutasa Bus Service between Harare and
Hurungwe. The first defendant was employed by the second defendant as a driver.
As a result of the collision, the 2 motor vehicles sustained damage
necessitating repairs. The plaintiff instituted proceedings for delictual
damages in respect of costs of repairs to its vehicle in the sum of $4 200-00
and loss of business in the sum of US$5140.00. It alleged in its declaration
that the collision was caused solely by the negligence of the first defendant
in that he failed to keep a proper look out, drove without due care and
attention, failed to avoid an accident when it was imminent, drove at an
excessive speed in the circumstances and drove a defective vehicle in that it
had no headlights.
The plaintiff averred further that the first and second defendants were jointly
liable for its loss by virtue of the fact that at the time of the collision,
the first defendant was acting within the course and scope of his employment by
the second defendant. Although it had cited the third defendant alleging that
it was also liable as the insurer of the second defendant, the plaintiff
subsequently withdrew the claim against the third defendant.
The first and second defendant contested the action. In their joint plea they
denied any wrong doing on the part of the first defendant stating that although
he had paid an admission of guilt fine of US$20.00 at ZRP Karoi, he had done so
“ in a desperate bid to avoid protracted interrogations (sic) as would amount
to harassment by the police officers involved.” They averred that the collision
had instead been caused by the negligence of the plaintiff's driver who drove
without due care and attention, failed to keep a proper look out, drove at an
excessive speed in the circumstances and failed to avoid an accident when it
was imminent.
The second defendant went on to make a counter claim of US$16 000.00 against
the plaintiff which he alleged was the cost of preparing his AVM bus and loss
of business. I must say right away that the second defendant did not lead
evidence to prove the counter claim except for the half – hearted, if not
extremely brief testimony of the second defendant, relating to the daily
takings of the bus in question. Indeed, in his closing submissions, Mr
Mapepa for the first and second defendants stated that the second
defendant was abandoning the counter claim. Therefore, nothing further should
be said about the counter claim.
At the pretrial conference of the parties held before a Judge, the issues for
trial were identified as;-
1.
Whether the accident was caused by the second defendant's driver (the first
defendant) or the plaintiff's driver.
2.
The quantum of damages suffered
The plaintiff led evidence from 3 witnesses. The first to
take the witness stand was Bernard Musekiwa who, at the time of the accident,
was employed by the plaintiff as a bus inspector. He testified that on the
night of the accident the Scania bus, which is a semi-luxury coach with 2 massive
front windscreens and large side window panels, a typical modernized coach was
being driven by Albert Bendura. He was petched at a vintage point in the cabin
seat next to the driver and therefore had a clear view of the road ahead. They
were travelling from Lusaka in Zambia on a return trip to Harare where the bus
is based and were carrying passengers.
Musekiwa stated that upon arrival in Karoi, the crew
decided to take a health recess before proceeding on the journey to Harare ,
after 1900hrs. No sooner had taken off from Karoi, in fact the bus had only
travelled just over a kilometre from Karoi and had not picked up speed cruising
at approximately 60 to 70km per hour, than he beheld oncoming traffic which had
only one headlight on the left side.
He stated that although it was dark on a cold night the
weather condition was such that one could see the road clearly. Musekiwa said
he warned his driver to be on the lookout as the oncoming vehicle had only one
headlight and no lighting whatsoever on the right side. This prompted the
driver to move further to the left side of the road out of caution. In his
observation, the driver of the oncoming vehicle must have had his vision
impaired by the defective lighting of his vehicle because suddenly that vehicle
bumped onto the plaintiff's bus on the driver's side. He estimated the speed of
the oncoming vehicle, which turned out to be the AVM bus belonging to the
second defendant driven by the first defendant, at about 80km per hour since it
was gaining speed on approaching Karoi on a slope.
Musekiwa went on to say that the plaintiff's vehicle was hit on the driver's
side shattering the windscreen and the AVM went on to side swipe it on the
right causing damage to the right side window panels and body. He stated that
because the second defendant's AVM was of the old fashioned carrier Daf type
which is robust and strong it sustained negligible damage as a result of the
collision.
The witness observed that the collision was caused by the first defendant
encroaching onto the right lane used by the plaintiff's vehicle. He denied that
there was any contributory negligence on the part of the plaintiff's driver as
he instead took evasive action by moving further to the left side of the road
and still could not avoid the collision.
Next to testify on behalf of the plaintiff was Seargent Tarwirei Kamanura, a
police officer of 14 years experience who is attached to ZRP Karoi traffic
section and has been so attached for 7 years. Following a report of an accident
which was received at 1920 hours on 18 July 2009, he attended the scene along
with Constable Matashu.
Kamanura testified that upon arrival at the scene which was at the 200km peg on
the Harare / Chirundu road, he interviewed the 2 drivers as to what had
happened. They stated their versions which he recorded on the traffic accident
book (TAB) and on the accident summary Form 76. He also made observations at
the scene which showed him that the bus driven by the first defendant had encroached
onto the lane of the plaintiff's bus driven by Albert Bendura. He drew that
conclusion due to the presence of debris in the form of shattered glass
spreading over a distance of 6 metres from the point of impact which was in the
middle of the lane used by the plaintiff's bus.
This witness drew a sketch diagram of the scene of the accident from
indications made by the 2 drivers as well as observations made. He produced the
TAB in which that sketch was drawn. At the scene he inspected the vehicles and
noted that the bus driven by the first defendant only had one headlight on the
left which was working while the right headlight was not functional. Following
his observations he concluded that the first defendant caused the accident as
the point of impact was clearly on the lane of the plaintiff's vehicle.
He stated that the first defendant was later charged with
driving without due care and attention in breach of section 50 (1) of the Road
Traffic Act [Cap 13:11]. He admitted liability and paid an admission
of guilt fine of US$20.00 on 7 August 2009. The officer denied that any undue
influence was brought to bear upon the first defendant to admit guilt insisting
that he had done so out of his free will having accepted he had been at a fault.
He further denied confiscating the first defendant driver's licence maintaining
that the first defendant only showed him the licence. The rest of the vehicle
documents in the form of the registration book and insurance were produced at
the station at a later stage.
In addition to corroborating the evidence of Musekiwa in material respects as
well as the damage to the plaintiff's vehicle, Kamunura observed further that 8
sliding windows on the right side and the rear view mirror had been damaged. He
was subjected to thorough cross examination but stuck to his story and was not
shaken at all. He readily admitted that the first defendant's version of the
accident was missing from the TAB and that when he looked for the original TAB
at the station he could not find it attributing this to misfiling which may
have occurred after the parties had requested the TAB from the police station
for their own use.
The last witness for the plaintiff was Hillary Simbarashe, one of the directors
of the plaintiff company, who testified on the repairs done to the vehicle
after the accident and the loss of business suffered by the plaintiff. He
produced 3 quotations from different panel beaters approached to repair the
vehicle. Accident Panel beaters gave a quotation of US$12 017.50 while
Normaz Auto Body & Repairs quoted US$9 490.00. The cheapest quote
was from Deven Engineering (Pvt) Ltd, the specialists who specially
built the plaintiff's bus. They quoted US$4 324.00.
Simbarashe testified that the plaintiff did not opt for any of the panel
beaters but elected to repair the vehicle itself as a cost cutting measure as
well as to mitigate its losses. This is because Deven Engineering (Pvt) Ltd,
although competitive, had indicated that it would take a month or so to
undertake the repairs when the plaintiff wanted the vehicle back on the road
sooner than that. As it turns out the plaintiff was able to repair the vehicle
in 14 days at a total cost of US$4200.00 during which period it was idle and
off the road. The plaintiff therefore suffered loss of business for that 14 day
period.
The witness testified that the Scania is a 66 seater bus engaged in cross
border business. The fare is US15.00 per passenger meaning that a full load
would gross US$990.00 (one way trip). Factoring in the expenses, including
fuel, of US$350-00 would leave a net of US$640-00. He stated that instead of
claiming that amount, the plaintiff acknowledged, in all fairness, that its not
all the time that the bus would have a full load. For that reason the plaintiff
opted for its average cashing per day of US$367-00 which when multiplied by the
number of days the bus was off the road (14 days) gives US$5138-00 which was
rounded off to the nearest unit of US$5140-00 claimed as loss of business.
The entire evidence of Simbarashe was not challenged at all and remains intact.
Indeed this witness, like the other 2 witnesses who testified for the
plaintiff, gave his evidence very well, clearly and was full of confidence. The
evidence presented on behalf of the plaintiff was truthful and was not
contested in any significant way. I have no hesitation in accepting it.
The 2 defendants also gave evidence. The first defendant ,Trymore Muchingami,
had been driving since 2003 when the accident occurred in July 2009. He stated
that on the night in question he was carrying passengers coming from Harare. He
insisted that his lights were in good working order as all the way he had been
using them effectively, dipping them where necessary and without any
difficulties.
Immediately before the collision, he saw the lights of an oncoming vehicle from
a distance of about 500m. He dipped his lights to facilitate easy passage. As
he drew closer he observed that the vehicle was driving straight against him on
his own lane. This vehicle, which turned out to be the plaintiff's bus, tried
to negotiate its way back to its left lane to avert an accident and appeared as
if it was going off the road on the left side. When the driver tried to come
back to the road, he failed to do so and came and collided with the first
defendant's bus. The first defendant maintained that the collision took place
on his side of the road and was caused by the excessive speed and the swerving
of the plaintiff's driver who even failed to stop after the collision. As he
stood by the road, he could see a distance of about 1½km down the road but the
plaintiff's bus had disappeared and was nowhere to be seen. The witness stated
that it was only after a while that it made a U-turn and returned to the scene
stopping briefly before proceeding to the police station in Karoi.
The first defendant testified that when the police officers came Kamanura
confronted him demanding to know why he was driving a bus without lights. He
says his response was that the lights had not been defective at all but had
became defective owing to the impact. When asked to demonstrate he had managed
to flash the lights. It was only when put on dip that both lights were not
working at all.
He said that Kamanura then, confiscated his driver's licence, insurance,
registration book and licence disc. He only signed an admission of guilt a
month after the accident because the police officers had intercepted him at a
road block while he was driving the same bus to Hurungwe and told him that he
had caused the accident by driving a vehicle without lights and that if he
wanted the matter to go away he had to pay the fine. The officer refused to
give his licence back until he paid the fine which forced him to do so only to
get his driver's licence.
I find the first defendant's story about the driver's licence, quite weird and
totally unbelievable. It is difficult to understand why the police would
confiscate his licence in the first place while allowing him to proceed with
his journey. What he would have the court believe is that he was driving a bus
carrying passengers for a period of exactly 3 weeks without a driver's licence.
He did not find it necessary to pass through the police station to claim his
licence. For someone who was protesting his innocence throughout, it is strange
that he did not even seek advice on how to recover his licence.
I also find it unfathomable that the accident occurred in the manner described
by the first defendant. From his version even as he saw the plaintiff's vehicle
from a distance of 500m as it was bearing down upon him on his side of the
road, he did not do anything whatsoever to avert the accident leaving everything
to the plaintiff's driver. It is also bizarre to suggest that after a collision
which completely shattered the drivers' side of the windscreen the plaintiff's
driver disappeared down the road a distance of more than 11/2 km
before returning to the scene and then proceeding to the police station to make
a report.
The first defendant did not make a good witness. He prevaricated a lot, and
gave a story with no ring of truth. I reject his evidence.
The evidence of Walter Mutasa was legendary by its brevity. It is not clear why
it was given. He confirmed that the first defendant was his driver. He was told
about the accident by his wife as he does not normally reside in Harare. He did
not say where he resides. After being told about it he did nothing until he
received summons. He stated that his bus used to give him US$1000-00 or more
per day and he was not sure for how long it was off the road although he thinks
it was over a month. That is all he said.
We know of course from the evidence of the first defendant that it was on the
road much earlier and that he was driving it to Hurungwe exactly 3 weeks after
the accident when he was stopped at a roadblock. Nothing is gained from this
testimony.
It is common cause that when the first defendant drove the second defendant's
AVM Daf on the night of 18 July 2009 he was acting within the course and scope
of his employment by the second defendant as a bus driver. For that reason the
doctrine of vicarious liability sets in. A master is answerable for the delicts
of his servant committed in the course of his employment Mkhizev Martins
1914 AD 382 at 390. Provided the servant is doing his master's work or pursuing
his master's ends he is acting within the scope of his employment. Feldman
(Pty) Ltd v Mall 1945 AD 733 at 736. See also P.Q.R Boberg; The
Law of Delict,Vol 1, Juta & Co Ltd pp 327-328.
I now turn to resolve the issues placed before me for trial
in this matter. The first issue relates to the determination of which of the 2
drivers caused the accident. That question resolves itself by reference to the
evidence I have already set out. I have accepted as credible, the evidence led
on behalf of the plaintiff that the first defendant drove a motor vehicle which
had defective lights, that it, it only had one light on the left while the
right light was completely off, on a dark night.
This detective lighting must have badly affected the first defendant's vision
thereby forcing him to drive straight onto the plaintiff's bus which was
lawfully being driven in the opposite direction on its side of the road. I have
also accepted the evidence that the plaintiff's driver did everything humanly
possible to avert the accident by moving to the left of the road. The same cannot
be said of the first defendant who did absolutely nothing to avert the
collision. This is a driver who does not even know if the plaintiff's driver
dipped his lights when approaching him.
The credible evidence of the police officer, Sgt Kamanura, is to the effect
that the first defendant encroached onto the lane of the oncoming vehicle
belonging to the plaintiff resulting in a collision, the point of impact of
which is squarely located on the lane used by the plaintiff's vehicle. He also
observed debris strewn on that same lane. I therefore make a finding that the
first defendant caused the accident by failing to keep a proper look out,
driving without due care and attention, failing to take evasive or avoiding
action when an accident was imminent and driving a defective vehicle.
The next issue relates to the quantum of damages. It has been established that
as a result of the collision the plaintiff's bus was damaged necessitating
repairs which kept it off the road for 14 days.
As state by the learned author Boberg, op cit at p 475:
“To succeed in the Aquilian action
the plaintiff must prove damnum – a calculable pecuniary loss or
diminution of his patrimony (estate) resulting from the defendant's unlawful
and culpable conduct”.
According to BERMAN J in Aaron's Whale Rock Trust v Murray &
Roberts Ltd &Anor1992(1) SA 652 (C) at 655;
“Where damages can be assessed
with exact mathematical precision, a plaintiff is expected to adduce sufficient
evidence to meet this requirement”.
See also Ebrahimv Pittman N.O. 1995 (1) ZLR 176 at 187 C-G
and Gavazav Shumba&Anor HH 268/12 at p 5.
I have accepted the evidence of Simbarashe on the quantum of damages suffered
by the plaintiff in repairing the vehicle after the accident. In my view the
plaintiff's claim under that rubric is very generous indeed considering that it
opted to repair the vehicle on its own at less than what had been quoted by
other service providers. I have also accepted Simbarashe's evidence on the
quantification of the loss of business which is not only done with mathematical
precision but is also generous in that the plaintiff averaged its daily loss
premised on its usual daily takings and not on the maximum carrying capacity of
the bus.
In that regard the plaintiff must be commended for claiming the bare minimum of
the damages claimable. I am therefore satisfied that the plaintiff had
succeeded on a balance of probabilities, in proving its claim for damages for
repairs and loss of business.
In the result I make the following order, that
1.
Judgment be and is hereby granted to the plaintiff against the first and the
second defendants jointly and severally, the one paying the other to be
absolved in the sums of US4 200-00 and US$5140-00 being damages for vehicle
repairs and loss of business respectively.
2.
Interest on both sums at the rate of 5% per annum of 18 July 2009 to date of
payment.
3.
Costs of suit.
Messrs Chinamasa, Mudimu & Dondo, plaintiff's
legal practitioners
Messrs Masawi & Partners, 1st
and 2nd defendant's legal practitioners
