CHITAKUNYE J: The
plaintiff is a self employed male adult.
The first defendant is employed by the second defendant as a
Marketing Assistant.
The second defendant is a company duly incorporated with limited
liability according to the laws of Zimbabwe.
At all material times the plaintiff was the owner of a Nissan Sunny
FB15 motor vehicle registration no. AAP 1693.
The first defendant was authorized to drive second defendant's
motor vehicle, viz; Nissan Hardbody registration no. AAG 1002.
On 28 July 2007, and at the intersection of Julius Nyerere Way and
Nkwame Nkrumah Avenue, around 0300hours, a collision occurred between
the plaintiff's aforesaid motor vehicle and second defendant's
motor vehicle then and there driven by first defendant.
The two motor vehicles sustained damages. The plaintiff's motor
vehicle was damaged beyond economical repair.
On 15 October 2007 plaintiff issued summons against the two
defendants claiming the replacement value of the Nissan Sunny FB15 as
at the time of judgment and interest thereon at the prescribed rate
from the date of judgment to the date of final payment. At the time
of issuance of the summons that replacement value was $7 billion. The
plaintiff alleged that the collision was caused solely as a result of
the negligent driving of first defendant. The particulars of
negligence alleged were that:-
1. She failed to keep a proper look out.
2. She failed to give precedence to the plaintiff's motor vehicle.
3. She failed to apply her brakes timeously or at all.
4. She entered the main road at a time when it was unsafe to do so.
The first defendant admitted that indeed a collision occurred on the
night in question between the aforementioned motor vehicles. She
admitted that she was driving the second defendant's motor vehicle
but this was not in the course of her employment. She denied that she
was negligent in any way. She, on the other hand, contended that
plaintiff was the sole cause of the accident in that:-
1. He was over speeding in the circumstances.
2. He drove without due care and attention.
3. He failed to take precautionary measures once he noticed the first
defendant's vehicle emerging from the round about.
Alternatively to the above, that plaintiff contributed significantly
to the occurrence of the collision by being negligent in the manner
or manners averred above.
After the closure of pleadings plaintiff withdrew his claim against
second defendant.
The issues for determination as between plaintiff and first defendant
were identified as:-
1. Whether or not first defendant was the sole cause of the accident.
2. If so, the particulars thereof.
3. Whether or not the plaintiff contributed towards the collision.
4. If so, the extent thereof.
5. What is the quantum of damages suffered by plaintiff?
The plaintiff's case was testified to by plaintiff and Mr Benjamin
Matambanadzo. The defendant gave evidence and called no other
witness.
From the evidence adduced in court it is common cause that on the
night in question a collision took place as alleged. Plaintiff was
driving along Julius Nyerere Way from north to south whilst first
defendant was driving along Nkwame Nkrumah Avenue from west to east.
The collision occurred in the middle lane of the south bound lanes
along Julius Nyerere Way.
The plaintiff gave evidence to the effect that on the night in
question he was driving down Julius Nyerere Way when, as he
approached its intersection with Nkwame Nkrumah Avenue, he suddenly
saw first defendant's motor vehicle in front of him; i.e. driving
across his path. The motor vehicle was so close that despite applying
brakes he could not avoid hitting into it.
At this intersection there is a small round about on Nkwame Nkrumah
Avenue, which does not encroach onto Julius Nyerere Way, and first
defendant was supposed to give way to traffic on Julius Nyerere Way.
The first defendant did not give way hence the collision. After the
collision he approached first defendant and asked her what had
happened. The first defendant's response was to the effect that she
was not aware that there was an oncoming motor vehicle. It was his
evidence that first defendant was negligent in failing to give way as
was expected of her at the intersection in question.
As regards damages sustained by his motor vehicle plaintiff indicated
that his motor vehicle suffered extensive damages including the
bursting of its air bags. After the collision second defendant's
insurers assessed his motor vehicle and ruled that it was damaged
beyond economical repair.
It was also his evidence that at the time of the collision he valued
the pre accident value of the motor vehicle at $3 billion.
Under cross examination plaintiff maintained his stance. He denied
that he was negligent in any way. As far as he was concerned first
defendant entered the intersection without having ascertained that it
was safe to do so.
On the first defendant's offer to have the motor vehicle repaired
at her cost plaintiff said he had no problems with that save to say
some of the damage like the air bags were not repairable. Those had
to be fitted by the manufacturer.
On the replacement value he indicated that as at the time of trial
the replacement value was $9,6 trillion and that is the sum he was
seeking. In that regard he tendered a quotation from DESMIC Motors
dated 27 May 2008 for a similar Nissan Sunny Motor vehicle at a price
of $9, 6 trillion.
In my view the plaintiff gave his evidence well.
Mr Benjamin Matambanadzo gave evidence for the plaintiff. He is a
panel beater by profession and owner of Imperial Motors. He did his
apprenticeship with the City of Harare from 1989 to 1992. After 1992
he qualified as a panel beater. He worked as a panel beater from the
time of apprenticeship to the present. His evidence was as an expert
in motor vehicle repairs.
His evidence was to the effect that after examining the plaintiff's
motor vehicle he concluded that it was damaged beyond economical
repair. In his assessment he looked at two principal factors, namely;
the total cost of repairs and the availability of the spares. In this
he took the total cost of repairs and compared it with the cost of an
accident free similar motor vehicle. He also considered the non
availability of spares locally and considered the cost of importing
such spares to come up with the total cost. It was after considering
these two aspects that he concluded that the motor vehicle was
damaged beyond economical repair.
His conclusion was in tandem with the assessment by second
defendant's insurers' report tendered into evidence as exhibit 2.
That report states that:
“The vehicle was written off
due to the fact that repair costs exceed 70% of the market value
mainly brought about by the fact that spares are not readily
available.”
Mr Matambanadzo also alluded to the non availability of spares and
the fact that air bags are not repairable.
Under cross examination, Mr Matambanadzo indicated that in his view
the motor vehicle was for car breaking. The evidence by Mr
Matambanadzo was not challenged in any meaningful way. The first
defendant did not call any expert evidence to rebut the testimony by
this witness.
The first defendant gave evidence to the effect that on the night in
question she was driving along Nkwame Nkrumah Avenue due east. On
approaching the intersection of Julius Nyerere Way and Nkwame Nkrumah
Avenue she checked for traffic on her right hand side and there was
none. She then proceeded to cross the three north bound lanes of
Julius Nyerere Way and got to a small round about. Before crossing
the south bound lanes she checked on her left hand side and observed
that there was a motor vehicle coming down. She estimated that the
motor vehicle was about 100 metres away. As she was crossing the
lanes she checked on her left again and saw that that motor vehicle
was near her. At that time she was in the middle lane. Her vehicle
was there and then hit on the loading tray as she was in that lane.
After the impact her motor vehicle swerved and faced the direction
plaintiff had come. It was her evidence that in her opinion both
plaintiff and herself were equally to blame for the accident.
Plaintiff's blame was that he was over speeding as evident from the
swerving of her motor vehicle on impact.
A careful analysis of the evidence adduced in court shows that
defendant's case is fraught with inconsistencies.
In paragraph 3 of her plea defendant alluded to the fact that once
she had crossed the three north bound lanes along Julius Nyerere Way
and got to an island/round about she could not have stopped in the
middle of the round about and so she proceeded. She also said she
proceeded after noticing that plaintiff's motor vehicle was a safe
distance away. Further on, she said that there was no obligation on
her to give way once she was in the round about.
It is unclear whether she proceeded to cross Julius Nyerere Way
because she was already in the round about or because she actually
observed that plaintiff's motor vehicle was far away and she could
cross safely. In fact by saying that she could not have stopped once
she was in the round about and that she was not obliged to give way
to south bound traffic on Julius Nyerere Way defendant was impliedly
admitting that she never gave way but just drove through without
ascertaining that it was safe to do so. She drove as if she had the
right of way as is ordinarily the case at a round about controlled
intersection.
In her evidence in court the defendant seemed confused regarding the
situation with the small round about at this intersection. Whilst
initially she made effort to show that plaintiff should have given
way since she was already in the round about, under cross examination
she seemed to buckle down when she admitted that to her knowledge she
had never seen motor vehicles driving along Julius Nyerere Way giving
way to motor vehicles crossing along Nkwame Nkrumah Avenue. If any
thing, motor vehicles in Nkwame Nkrumah Avenue give way to motor
vehicles traveling along Julius Nyerere Way.
In her plea defendant had said that the plaintiff was the sole cause
of the accident. In her evidence in court she did not maintain that.
She instead said that they were both equally to blame. Clearly
defendant was unsure of herself.
In her evidence in chief and under cross examination she admitted
that she paid an admission of guilty fine after admitting to driving
without due care and attention.
When quizzed why she paid the fine defendant initially said she did
so as she was in shock. She later admitted that whereas the accident
occurred on 28 July 2007 she went to the police to pay the fine
several days after the accident. She could not explain how the shock
continued to affect her when she had had several days to compose
herself before paying the fine.
Equally exhibit 2 is an insurance report. On page 2 thereof the
defendant's version of how the accident occurred is recorded.
Though defendant said she is not the one who wrote it, she did not
deny that that information came from her. In that report she stated
that:
“I was driving along Nkwame
Nkrumah at the intersection with Julius Nyerere at a round about when
I misjudged the speed of a Nissan Sunny Reg. no. AAP 1693 which
appeared to be a distance only to realize that it was close thereby
resulting in the Nissan Sunny hitting my left side of the loading
tray and partly front.”
Though denying the handwriting she admitted appending her signature
to that statement as her statement.
When she was asked further why she gave out such a version her
response was to the effect that she did it because she wanted the
speed finalization of the matter and for the insurance company to pay
Tendai.
If, as she said in her plea,
plaintiff was the sole cause or, as she now said in her viva
voce evidence,
plaintiff and herself contributed equally why would she want
plaintiff to be paid off speedily by the insurance company?
In any case, it was not just because she wanted the insurance company
to quickly pay off plaintiff but as she stated in her evidence and
under cross examination, she wanted to avoid being charged with the
more serious offence of negligent driving. Such a charge was not
preferred against her because of the offer made by her employer to
pay plaintiff for the damage to his motor vehicle. Defendant clearly
admitted that it was because of these negotiations that she was not
charged with negligent driving.
Defendant also testified that as at the time of trial plaintiff had
been paid $5million by her employer's insurance company and a
second payment of $7 billion was made in April 2008 by herself and
her employer towards plaintiff's claim. When asked why they paid
the $7 billion she said it was because they had not been given a
claim exceeding $7 billion. She was further asked that now that a
claim of more than $7 billion was made what was her stance to which
she said “I say that the motor vehicle was paid for.”
I did not hear defendant to say that the payment was made on a
without prejudice basis. It was clearly made because defendant
accepted liability. She just could not be bold enough to admit so in
her pleadings and in court.
On the question of liability for the accident I find that defendant
was the sole cause of the accident. She clearly did not keep a proper
lookout for other motorists, she did not give way to traffic on the
main road as was required of her hence entering the main road when it
was not safe to do so. As per her own words she “misjudged the
speed of plaintiff's motor vehicle.” The defendant was negligent
in those circumstances.
The next issue is on the quantum of damages.
The assessment of damages in accidents is not an easy one. The law
has been espoused in a number of cases but it would appear parties
still fail to comprehend what is expected of them.
In his book Motor Law, volume two, Juta 1987, at p.387 the learned
author W E Cooper stated that:
“An owner is entitled to a sum
of money (damages) which will place him in the financial position he
would have been in if his motor vehicle had not been damaged. The
object of an award is to compensate the owner for material loss, not
to improve his material prospects. In other words the owner is
entitled to claim his negative interesse (interest).
The plaintiff's loss must be assessed as at the time the motor
vehicle was damaged.”
This was also elucidated in
Erasmus v Davis
1969 (2) S.A. 1 at page 9 A-B wherein POTIGIETER, A.R said that:-
“The principle of assessment of
damages in delict is that a plaintiff must by monetary compensation
be placed in as good a position financially as he would have been in
if the delict had not been committed (see de
Jager v. Grunder, 1964
(1) S.A. 446 (A.D.) at p. 456). Generally speaking, payment to a
plaintiff of a sum representing the diminution in value of his
damaged property will place him in such a position. In order to prove
such diminution in value a plaintiff would be entitled to establish
the difference between the pre-collision and post-collision value of
his damaged property.”
This was also confirmed by
Muller, WN A. R. in Erasmus
v. Davis (supra)
at p.17D when he said that:-
”A litigant who sues in delict
is entitled to recover from the wrong doer the amount by which his
patrimony has been diminished as a result of the conduct of the
latter.”
He is thus not entitled to recover anything more.
In our jurisdiction MAKARAU JP
had occasion to restate the position in Monica
Komichi v
David Edwin Tanner and
Eaton & Young HH104/05.
At page 3 of the cyclostyled judgment the Hon. Judge President stated
that:-
“It is indeed the settled
position that the measure of delictual damages in our law, also known
as the “negative interesse” is the calculation of an amount of
money which is necessary to place the plaintiff in the (hypothetical)
financial position he would have enjoyed had the delict not been
committed. The measure of damages requires the plaintiff to establish
the extent of her estate before the delict and a diminution to that
estate as a result of the delict.”
In order to establish the
diminution in value there are two methods a party can seek to employ.
Namely (a) by proving the vehicle's pre-collision and post
-collision value; or (b) by proving the cost of repairing it. (See
Motor Law by W.E. COOPER (supra)
at p387)
The onus rests on the plaintiff of proving, not only that he has
suffered damages, but also the quantum thereof. To discharge such
onus expert evidence is required to establish the pre -collision
value and the post-collision value. The evidence must show what
damages were suffered and what it would cost to put the motor vehicle
to the state it was before the collision.
The plaintiff is thus required to prove the pre-accident value of the
motor vehicle and its post accident value in order to reveal the
diminution in value thereof. This is so because as pointed out above,
the measure of damages payable to plaintiff is the diminution in
value of the motor vehicle by reason of the damage sustained in the
accident. Generally expert evidence will be required to establish the
pre-collision and post-collision values. An expert would be able to
describe the nature and extent of the damage and the necessary
repairs and cost thereof.
In casu
the plaintiff claimed for the replacement value as at the time of
judgment. He seemed oblivious to the need to prove the pre-collision
and post collision value. The expert witness he called was not called
upon to testify on such values at all. Whilst not giving the post
accident value Mr Matambanadzo said that the motor vehicle can only
be for car breaking. That in my view confirmed that the motor vehicle
still had value. The fact that the motor vehicle was deemed damaged
beyond economical repair did not imply that it was valueless. In fact
in answer to a request for further particulars plaintiff had said the
salvage value was now about $75,000,000,000.00 (that is as at 26
March 2008). Unfortunately in his evidence such salvage value was not
testified to at all. That value should have been ascertained as at
the date of the accident and then used to ascertain the diminution in
value of the motor vehicle. The evidence did not touch on the cost of
repairs at all, again a factor necessary in such claims. Instead the
plaintiff sought quotations of prices of similar motor vehicles. That
in my view would not be the damages suffered in the collision. That
price did not take into account the pre-collision value less the
post-collision value. It is a price of a motor vehicle similar in
make to plaintiff's motor vehicle and nothing more.
The plaintiff's prayer for quantum as at the time of judgment was
without legal justification.
I did not hear counsel to refer to any legal principal justifying
quantum of damages as at the date of judgment in delictual claims.
The plaintiff provided a quotation as at 27 May 2008, which was the
date of commencement of trial and not the date of judgment. That sum
was $9.6 trillion. It is that figure that plaintiff in his evidence
sought to prove as the damages he suffered as a result of first
defendant's conduct.
In his closing submissions plaintiff's counsel submitted that such
a value (of $9.6trillion) “cannot now purchase a similar vehicle.
In the premises, it is respectively submitted that it would only be
just and equitable that first defendant be ordered to pay the
replacement cost of plaintiffs vehicle as at the time of such payment
to take into account the increase in value of the vehicle caused by
hyper inflation. An amendment to plaintiff's prayer is therefore
respectively sought in that regard.”
As with the previous prayer for quantum as on the date of judgment,
this new prayer for the quantum as at the date of payment was made
without any legal justification. It was made with the desire to get
the replacement value as at the date of payment yet as has been
stated above plaintiff is entitled to the damages suffered as a
result of the delict by defendant and nothing more. Those damages are
calculated taking into account the pre-collision value less
post-collision value. For example if just before the collision the
vehicle was worth A and after collision it is now worth B. the
difference between the A and B would be the cost of repairing the
motor vehicle to its pre collision state A. If C is that difference
then that is the figure the defendant should be saddled with and not
the cost of replacing the entire motor vehicle including B. If there
are any arguments about inflation adjustments those in my view should
be made vis a vis the damages C and not the whole motor vehicle.
In casu
the plaintiff's approach on assessment of damages was wrong and did
not prove the extent of the damages suffered.
Accordingly the defendant is granted an absolution from the instance.
Debwe & Partners, plaintiff's legal practitioners.
Mabulala & Motsi, defendant's legal practitioners.
