MAFUSIRE J: The
plaintiff, a self-actor, initially claimed from all three defendants, jointly
and severally, damages in the sum of US$32 484-00, being the estimated cost of
repairs to his Mercedes Benz motor vehicle (“the Mercedes”) that was
damaged in an accident involving himself and a commuter omnibus being driven by
the second defendant. Even though a self-actor, it was evident the plaintiff
had legal assistance in the background. But the claim lacked precision. By the
time of the pre-trial conference, the claim against the third defendant had
been withdrawn. As it later turned out, this was a mistake. Evidently, the
plaintiff had been ill-advised. The third defendant, not the first defendant,
was undoubtedly the man the plaintiff had wanted on vicarious liability. The
details shall emerge later.
In spite of the
imprecision of the claim and of the defence, most facts were common cause. They
were these. On the day in question, the second defendant was driving a commuter
omnibus, a Toyota Hiace minibus (“the commuter omnibus” or “the
minibus”), along Harare Street in Harare. His minibus collided with the
plaintiff's Mercedes as he tried to cross Herbert Chitepo Avenue from south to north.
The plaintiff was driving along Herbert Chitepo Avenue from west to east. At
that area the major road was Herbert Chitepo Avenue. It was a dual carriageway
on both sides.
There was a dispute
whether there was a give way sign facing Harare Street or not. The plaintiff
maintained there was. The second defendant at first agreed. Later on he changed
to deny that there was such a sign, but merely a cycle track sign. Whichever
way, both parties accepted that the plaintiff had the right of way.
When the cars collided,
the impact forced the commuter omnibus to spin 180o to end up facing
the direction it had come from.
The second defendant was
charged in the magistrate's court. After a full trial he was convicted of
negligent driving in terms of s 52(2) of the Road Traffic Act, [Chapter 13: 11]. He was fined US$100-00, or in default, 20 days imprisonment.
The second defendant was also
charged and convicted of failure to display a valid defensive driving certificate
and a valid medical certificate, in contravention of s 6 of the Road Traffic
(Public Service Vehicles Drivers) Regulations 2006, SI 168/2006. He was fined
US$50-00, or in default, 10 days imprisonment. In addition his licence was
endorsed.
The plaintiff's Mercedes
was damaged on the front. Three firms of panel beaters declared it uneconomic
to repair. The estimates were US$30 000-00, US$ 32 484-00 and US$35 000-00.
It was not quite clear from the pleadings what
exactly the basis of the plaintiff's claim against the first and third
defendants was. Evidently, someone had told him of something called vicarious
liability. But this was badly pleaded. At first it was not even pleaded at all.
Subsequently, an amendment was sought. Despite, the bad draftsmanship, I
accepted what was presented as a claim for vicarious liability.
The defendants' pleadings
were equally bad. They seemed to be excepting to the plaintiff's claim. Later
on, in response to the plaintiff's notice of amendment, the defendants also
amended their plea. Among other things, both liability and quantum were denied.
It seems at first the
plaintiff had gathered that the third defendant was the owner of the commuter
omnibus business and that the second defendant was his employee/driver.
However, following his further investigations the plaintiff concluded that the
first defendant, and not the third defendant, was the proprietor and operator
of the commuter omnibus. Plaintiff's proof that the first defendant was the
owner and operator of the commuter omnibus was the inscription of the first
defendant's name and address on the omnibus. This was visible from the
photographs taken of the vehicles at the scene of the accident. Furthermore, the
plaintiff said he had confirmed with the central vehicle registry (“CVR”)
that the minibus was registered in the name of first defendant. On that basis
he proceeded against the first defendant on vicarious liability and dropped the
third defendant from the suit.
In summary, the
plaintiff's case was that on the day in question, he having been driving along
the major road, had the right of way. The second defendant, having been driving
along a minor road, had failed to give way. He had disobeyed a give way sign.
He had been driving very fast. His omnibus had suddenly appeared in front of
him. It had overtaken two other vehicles. There had been no time for him, the
plaintiff, to do anything to avoid the accident. He could not remember having applied
brakes. Just before the impact, he had impulsively shut his eyes in
anticipation of death. The second defendant had been solely responsible for the
accident. For that, he had been convicted in the magistrate's court.
On the other hand, the
second defendant's case was that the plaintiff had been solely responsible for
the accident. He said the time of the accident, around 07:40 hours, was morning
peak time or rush hour. The plaintiff was rushing to drop off his wife, a
policewoman, at her work station at the police general headquarters further up
north. Traffic congestion had been most severe.
The second defendant conceded
that traffic travelling along Harare Street, being the minor road, had to give
way to traffic travelling along Herbert Chitepo Avenue, the major road.
However, he said that at peak times, there was an understanding amongst
motorists. Traffic along Herbert Chitepo Avenue would sometimes concede the
right of way to allow traffic along Harare Street to filter through. Otherwise,
a motorist on Harare Street could spend two hours or more waiting for a chance
to cross.
The second defendant
further said that traffic travelling along Herbert Chitepo Avenue, firstly from
east to west, i.e. approaching the intersection from his right, and from the
plaintiff's opposite direction of travel, had conceded the right of way to
allow traffic along Harare Street, including his minibus, to cross. The second
defendant said he had then slowly and cautiously manoeuvred his omnibus onto
the centre of Herbert Chitepo Avenue after crossing the first two lanes.
Traffic from west to east along Herbert Chitepo Avenue, i.e. from his left and
from the same direction of travel as the plaintiff's, then also yielded the
right of way. But not the plaintiff. He was coming very fast. He was in the
outer lane. The second defendant said he stopped his commuter omnibus somewhere
slightly in the middle of Herbert Chitepo Avenue. According to him, there was enough
space in front of him for the plaintiff's Mercedes to pass through safely. But
the Mercedes had smashed into the front left of his commuter omnibus. The
impact had forced the commuter omnibus to spin and face the direction it had
been coming from.
After the collision, the
plaintiff's wife had come out screaming and shouting. She was saying she had been
remonstrating with the plaintiff not to dive too fast. She was also lamenting
the loss of their Mercedes.
It was the second
defendant's further evidence that because the plaintiff's wife was a police
officer, she had easily facilitated the attendance of other police details to the
accident scene. However, it was because of her status as such that he, and not
the plaintiff, had ended up being charged with negligent driving. He admitted
the convictions in the magistrate's court. However, he denied that he had been
the one negligent in the accident. He had not appealed against the convictions
on account of lack of resources.
On quantum, the second
defendant said it was wrong for the plaintiff to claim expensive repair costs
when the Mercedes had been declared a write-off. The plaintiff ought to have
sought the cost of a replacement vehicle which would be far cheaper. For a similar
make and model the replacement would cost no more than US$8 000-00.
On the status of his
employment, the second defendant said he did not know the first defendant. His
employer had been one Otis Ndagurwa. It was Otis Ndagurwa who had recruited
him. In the commuter omnibus industry employment was by word of mouth. There
are no written contracts. Otis Ndagurwa paid him his wages. It was to Otis
Ndagurwa that he reported daily takings and any operational problems.
The first defendant also
gave evidence. He said he did not understand why the plaintiff had ever dragged
him into the case. He was an accountant. He was based in South Africa since
2006. He had bought the commuter omnibus in question from South Africa for his
childhood friend, Otis Ndagurwa, who had fallen on hard times. Otis Ndagurwa had
appealed to him for assistance to help feed his family. The first defendant had
obliged by importing the minibus for him to run a commuter omnibus business.
The vehicle had been imported in the first defendant's name. It had been
registered in his name. It had been inscribed with his name. His agreement with
Otis Ndagurwa had been some kind of a lease-hire. The minibus would remain
registered in his name and would maintain his identity particulars until he had
been paid the last instalment. That was his security for the deal. Thereafter,
he would transfer ownership to Otis Ndagurwa. Unfortunately, the accident had happened
before the period of the agreement had concluded.
The first defendant denied
that he had had anything to do with the commuter omnibus business. He was far
too involved with his professional commitments in South Africa as to be unable
to operate a commuter omnibus business back home. He had nothing to do with the
second defendant. He only got to know him after the accident and when he was
being dragged in the case.
On quantum, the first
defendant said he had surfed the internet and researched on the replacement
value of a Mercedes Benz vehicle similar to the plaintiff's. The plaintiff's
Mercedes had been an import from the United Kingdom. The landed cost for a similar
one and from the same market would be no more than US$8 000-00. The first
defendant wondered why the plaintiff had opted to claim repair costs instead of
just importing a similar one at far cheaper a price.
That was the case before
me.
In my assessment, what
was abundantly clear and inescapable was that the accident was caused by the
contributory negligence of both the plaintiff and the second defendant. This had
also emerged quite clearly from the criminal trial in the magistrate's court. Only
that contributory negligence was not a defence. The record of proceedings in
the magistrate's court had been placed before me as part of the defendants'
evidence.
In my view, the second
defendant had no business entering the intersection in question unless he had
been absolutely certain that it was safe to do so. There was a conflict between
the parties regarding the volume of traffic. The second defendant said it was
peak time and that congestion was thick. The plaintiff was unsure. But he
denied the congestion. He said traffic was light. He said that explained how
the second defendant could have been able to drive that fast. In the
magistrate's court the plaintiff had claimed the second defendant had been “flying”.
However, the evidence on
the volume of traffic does not decide the matter. It seems to me from the
totality of the evidence that both parties were driving at excessive speeds in
the circumstances. The second defendant assumed that all traffic from Herbert
Chitepo Avenue was going to give him way. As it happened, the plaintiff did
not. The alleged understanding among motorists at busy intersections and at
peak times was apparently not shared by the plaintiff. But he, the second
defendant, ignored a traffic sign. That he could have spent two hours or more
for a chance to cross Herbert Chitepo Avenue, did not give him the right to
disobey traffic rules.
On his part, the
plaintiff was also negligent in that, apart from the excessive speed, the right
of way did not entail proceeding through an intersection when it was unsafe to
do so. If he had been keeping a proper look-out, he should have realised that
the second defendant's minibus was not going to stop. In answers to questions
by myself, and also in cross-examination, the plaintiff conceded that he had
concentrated solely on traffic in front of him. He had not seen traffic on the
other lanes, let alone, that from Harare Street. That was negligence. A
motorist should be alert at all times that he is on the road. He must have 360o
vision and consciousness of the road or the surroundings. What he may not
detect directly should be picked up by the rear view mirrors. The second
defendant was not even coming from the so-called blind spot.
The plaintiff was also
negligent in failing to take any avoiding action when the accident seemed
imminent. The least he could have done was to apply brakes. Instead, he shut
his eyes in anticipation of death. Furthermore, the plaintiff did not
controvert the second defendant's evidence that after he had stopped his
minibus in the middle of Herbert Chitepo Avenue, there had been sufficient
space for his Mercedes to drive through. Probably all that the plaintiff had needed
to do, was to swerve slightly to his left. On this particular point, the
parties were in conflict as to which particular lane the plaintiff had been
travelling along. The second defendant said the plaintiff had been travelling along
the outer lane. The plaintiff said he had been on the inner lane. But whichever
way, the plaintiff, even if he had been on the inner lane as he said, did not
say there was traffic in the outer lane that might have impeded him from
swerving his Mercedes to avoid smashing into the second defendant's minibus.
The plaintiff further
conceded that it was his Mercedes that had rammed into the front side of the minibus.
The Mercedes had suffered frontal damage. The minibus had suffered minimal damage
at the bottom of the front left door and the left fender. Comparatively, the
Mercedes had come worse off. The second defendant explained that it was because
the Mercedes had smashed onto the rim of his minibus. A rim is a very hard
surface compared to the grille, the bonnet and the headlamps of the Mercedes
that seemed to have borne the brunt of the impact. But the point is, the
Mercedes, hitting with its softer parts, had forced the minibus to spin 180o.
To me that infers considerable speed by the plaintiff.
Having found that the
accident was caused by the contributory negligence of both parties, what
remains is to assess the respective degrees of negligence. There are no scales
by which to weigh negligence. That then calls for a value judgment. In my view,
a judicial officer called upon to give a value judgment is guided by his own
notions of justice and fair play. He is guided by the general norms and sense
of values generally prevailing in society. He makes an objective assessment:
see generally S v Chidodo & Anor.
In my view, the second
defendant was largely more negligent than the plaintiff. The failure to obey
the give way sign tilts the scales somewhat more heavily against him. But in
his favour, is the fact that, at least after realising that the accident was
imminent, he took some avoiding action, even though ultimately it proved
inadequate. But having created the dangerous situation himself, he must bear a
larger responsibility for what happened afterwards.
As for the plaintiff, it
was disturbing that nothing could move him from the notion that just because he
had the right of way, he had to proceed through the intersection regardless of
whether or not it was safe to do so. That had also been his attitude in the
criminal case. That tends to tilt the scales back towards the equilibrium.
In the final analysis, I
consider that in percentage terms, the respective degrees of negligence of the
parties were 75% for the second defendant and 25% for the plaintiff.
As against the first
defendant, the plaintiff clearly pursued the wrong party. The first defendant's
evidence, and that of the second defendant, that he had nothing to do with the
commuter omnibus business or with the second defendant as an employee, was
quite robust. The plaintiff failed to dislodge them from that position. The
plaintiff's only evidence that the first defendant was the operator of the
commuter omnibus was the inscription of his name and address on the omnibus and
the fact that it was still registered in his name. But that did not make the
first defendant the owner of the commuter omnibus business. That did not make
him the second defendant's employer. Therefore, there was no question of vicarious
liability on the part of the first defendant. Therefore, the plaintiff's claim
against the first defendant is dismissed with costs. However, such costs shall
be confined to the cost of employing one counsel. I have found no justification
for the defendants' decision to employ two counsel.
There remains the
question of quantum. The plaintiff's case was that although his Mercedes had been
declared uneconomic to repair, it could still be repaired. He sourced three
quotations on the cost of repairs from reputable motor dealers. One of them was
Isoquant Investments (Private) Limited whose trade name is ZIMOCO. It is a
well-known dealer in Mercedes Benz vehicles in this country. Its estimate was
US$32 484-00. That was the basis of the plaintiff's claim.
The other estimates were
from Swiss Motors Panel Beaters and Spray Painters at US$35 000-00. The last
was from G & M Panel Beaters (Private) Limited at US$30 000.
Against the plaintiff's
evidence, the defendants produced a print-out from the CVR. But all it had was a
list of the particulars of the plaintiff's Mercedes. The first defendant said
from his search of the internet, he had discovered that a Mercedes vehicle
similar in make and model to the plaintiff's would cost no more than US$8
000-00 to import. On that basis the defendants argued that the plaintiff ought
to have claimed the cost of a replacement vehicle rather that those expensive
repair costs.
The purpose of delictual
damages is to place the injured party, as far as money can do, in the same
position he was in had the delict not occurred. It is not the purpose of
damages to enrich him. The damages may not be established with mathematical
exactitude or precision. In Esso Standard
SA (Pty) Ltd v Katz it was noted that in some
types of cases damages are difficult to estimate, but that just because they
cannot be assessed with certainty or precision will not relieve the wrong doer
of the obligation to pay for his breach. The plaintiff is entitled and required
to adduce the best evidence reasonably available to him. In Hersman v Shapiro & Co 1926 TPD 367 STRATFORD J stated as follows:
“… [M]onetary damage having been
suffered, it is necessary for the court to assess the amount and make the best
use it can of the evidence before it. There are cases where the assessment by
the Court is very little more than an estimate; but even so, if it is certain
that pecuniary damage has been suffered, the Court is bound to award damages.
It is not so bound in the case where evidence available to the plaintiff which
he has not produced; in those circumstances the Court is justified in giving,
and does give, absolution from the instance. But where the best evidence
available has been produced, though it is not entirely of a conclusive
character and does permit of a mathematical calculation of the damages
suffered, still, it is the best evidence available, the Court must use it and
arrive at a conclusion based upon it …”
The defendants had no tangible
evidence that it would cost far less for the plaintiff to import a replacement
vehicle similar to the plaintiff's Mercedes. The print-out from the CVR was
unhelpful. Other than their say so, nothing else was placed before me on the results
of their alleged search on the internet. Under such circumstances, and given
that the plaintiff was a self-actor, albeit with some discernible legal help in
the background, and given that he had at least placed the best evidence
available to him before the court, and given that at the end of the day it is
again a question of value judgment, I have decided to award the plaintiff what
I have considered to be fair and reasonable compensation for his loss. My
assessment takes into account the defendants' argument that the repair costs as
presented by the plaintiff are far too expensive. Incidentally, the plaintiff
completely refrained from disclosing the price at which he had bought his
Mercedes. It was a C230 make and a 2002 model. At the time of the accident in
2012 it had done roughly 10 years.
In my view, the
defendants' argument that it was probably cheaper just to seek a replacement
vehicle than to insist on repairs was reasonable. In my view a replacement
vehicle would, at the time of the accident, probably have cost not more than
US$10 000-00. In the circumstances, I consider that a fair assessment of the
plaintiff's loss was no more than US$10 000-00. However, having found the
plaintiff to have been 25% negligent in the accident, the second defendant's
liability, at 75% contributory negligence, is US$7 500-00.
DISPOSITION
I the final analysis I
make the following order:
1
The
plaintiff's claim against the first defendant is hereby dismissed with costs. However,
such costs shall be restricted to the employment of one counsel.
2
The
accident in question was caused by the joint and contributory negligence of the
plaintiff and the second defendant.
3
The
degree of negligence of the plaintiff in causing the accident was 25% and that
of the second defendant was 75%.
4
The
fair and reasonable amount of damages suffered by the plaintiff as a result of
the accident was in the sum of US$10 000-00.
5 Given the respective degrees of
negligence aforesaid, the second defendant shall pay the plaintiff the sum of
US$7 500-00, together with interest thereon at the rate of 5% per annum from
the date of this judgment to the date of payment.
5
The
second defendant shall pay 75% of the plaintiff's costs of suit.
14 October 2015
P. Takawadiyi & Associates, defendants' legal
practitioners
