CHEDA
AJ: The
plaintiff issued summons against the defendant claiming damages totaling ZAR587
500.00 arising from a traffic accident in which he said the defendant's vehicle
collided with, and caused damage to his vehicle.
He said the accident was due to the negligence of the 1st
defendant's driver who is the 2nd defendant. The summons was
served on the 1st defendant only. The 2nd defendant
could not be located. However, an appearance to defend was filed for both
defendants by their legal practitioner. They requested particulars which
were supplied. In his plea, 1st defendant pleaded that the 2nd
defendant was on a frolic of his own at the time of the accident and denied
liability and putting plaintiff to proof thereof concerning the claim and other
averments.
The 2nd defendant said in his plea that he was driving the 1st
defendant's vehicle as that is his employer. He said that he was not
acting within the course of his employment with the 1st defendant at
the time of the accident but in any case he denied liability and put the
plaintiff to proof thereof.
In preparation for trial the plaintiff filed a synopsis of evidence in which he
said he would lead evidence to show that on the 13th day of July
2010, at the intersection of 3rd Avenue and Herbert Chitepo Street,
in Bulawayo, 1st defendant's haulage truck rammed into the
plaintiff's vehicle and that the accident was due to the negligence of the 2nd
defendant. He particularized the negligence of the 2nd
defendant. He said his vehicle was damaged beyond repair and he suffered
loss of income. He was claiming ZAR587 500,00.
When the trial commenced the plaintiff's driver was called first. He
narrated how the accident occurred at the intersection of Herbert Chitepo and 3rd
Avenue. He said the defendant's vehicle approached from his right side,
ignored a Give Way sign and rammed into the plaintiff's vehicle which he was
driving. In answer to questions put to him he said as an employee he was
not in a position to give details about the correct identity of the plaintiff
in the papers whether it is a company or an individual.
He said he did not know about the value of the vehicle or the possible costs of
its repair. He was therefore unable to answer any questions concerning
the value of the damages claimed by the plaintiff.
This gap in the evidence of plaintiff's case required the direct evidence of
the plaintiff. Order 46, Rule 408 of the High Court Rules
provides that in the absence of any agreement in writing, between the legal
practitioners of all the parties, and subject to these rules, the witnesses at
the trial of any action shall be examined viva voce and in open court,
but the court may at any time for sufficient reasons order that any particular
fact or facts may be proved by affidavit, or that the affidavit of any witness
may be read at the hearing or trial, on such conditions as the court may think
reasonable, or that any witness, whose attendance in court ought for some
sufficient cause to be dispensed with, be examined by interrogatories or
otherwise before a commissioner or examiner.
In this case no such arrangement was made, and no explanation was given for not
calling the plaintiff. In addition to calling evidence the plaintiff in a
claim for damages has to prove the damages. He cannot leave it to the
court to work out damages for him. Only the plaintiff could give evidence
as to the value of the vehicle when it was purchased, the value of the vehicle
at the time of the accident, or what it would cost him to repair it.
The plaintiff's legal practitioner called 2 expert witnesses to testify on the
reasons why the vehicle could not be repaired. Their evidence concerned
the damage to the vehicle and that trying to prepare it for subsequent use as a
public serve vehicle would render it dangerous to passengers. None of
these witnesses could give evidence as to the value of the vehicle prior to the
accident and the loss suffered by the plaintiff for the loss of its use.
All they could do was to estimate the cost of similar vehicles, evidence
which remained unsatisfactory. This evidence could not be relied on as
proof of the damages suffered by the plaintiff.
After this evidence plaintiff's case was
closed.
Other documents filed in this case showed that the vehicle was registered in
the name of Teddy Mkandla. On seeking the correct identity of the
plaintiff counsel for the defendants was unable to get any clarification in the
absence of the plaintiff.
When the plaintiff's case was closed the matter could have ended there.
However, defendants submitted that instead of absolution from the instance they
preferred to lead their evidence so that the matter is brought to
finality. Evidence of the defendant was then led and 1st
defendant persisted in his denial of liability.
At the end of the hearing it was clear that the plaintiff, who had undertaken
in his synopsis of evidence filed, to lead evidence to prove his damages, had
not led such evidence.
No reason was given for not calling him. Plaintiff therefore failed to
prosecute his claim as required by the Rules of Court which require that he
give viva voce evidence and be cross-examined.
He was not present even to explain the query about the correct ownership of the
damaged vehicle.
The law requires that a party who is claiming damages must prove his damages in
court. A party cannot send documents to court and leave it to the court
to determine the claim for him. What he stated in the summons must be
substantiated in open court by his viva voce evidence.
In this case the case ended without the plaintiff's evidence, and as such the
plaintiff has not proved his case.
The end result is that the plaintiff's case is dismissed with costs.
Messrs Cheda & Partners, plaintiff's legal practitioners
Messrs
Calderwood, Bryce Hendrie & Partners, 1st
defendant's legal practitioners
