This is an appeal against the judgment of the High Court in which the appellant's claim for the replacement value of a Mercedes Benz motor vehicle, and damages arising from a road traffic accident, was dismissed with costs.The facts of this matter are that on 10 September 2008, at 7:30pm, ...
This is an appeal against the judgment of the High Court in which the appellant's claim for the replacement value of a Mercedes Benz motor vehicle, and damages arising from a road traffic accident, was dismissed with costs.
The facts of this matter are that on 10 September 2008, at 7:30pm, the appellant was driving a Mercedes Benz E200 Compressor motor vehicle from Gweru to Harare. At the 49 kilometre 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 respondent during the course and scope of his employment with the second respondent. Both the trailer and the tractor belonged to the second respondent.
The appellant issued summons against both respondents on 25 February 2009. He sought US$30,000 being the replacement value of the Mercedes Benz motor vehicle together with interest thereon at the rate of 30% per annum from the date of the accident to the date of payment in full and damages for hiring a vehicle for his use at the rate of US$2,000 a month from the date of the accident to the date of payment (sic).
He further sought general damages for pain and suffering in the sum of US$10,000 together with interest at the rate of 30% per annum from the date of the accident to the date of payment in full.
In his declaration, the appellant averred that the accident was caused by the negligence of the first respondent and the un-roadworthiness of both the tractor and the trailer. He particularised the negligence thus:
(a) The tractor driver was not licensed to drive.
(b) The trailer, which had 30 passengers, had no rear lights despite the fact that it was around 7:30pm.
(c) The driver was driving in the middle of the road instead of the extreme left of the road.
(d) The driver drove without due care and attention and failed to avoid an accident when it was imminent.
(e) 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.
(f) The vehicles were not licensed to carry workers on public roads.
He further averred that the second respondent was negligent in using an unlicensed and under-age driver to drive an unregistered and un-insured tractor and trailer to carry workers on a public highway - and especially at night.
In their joint plea, the respondents 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 appellant who drove at an excessive speed, failed to keep a proper lookout, and attempted to overtake the tractor and trailer when it was not safe for him to do so.
While admitting that the trailer did not have rear lights, they denied that this contributed to the accident in any way.
They further stated 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.
The respondents further accepted that the first respondent 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 appellant to his person and vehicle in issue.
In his replication, the appellant averred that he noticed the tractor-drawn trailer when it was 10-15 metres in front of him because his head lamps were on low beam. He had just passed a vehicle travelling in the opposite direction and could not overtake as there was an oncoming vehicle. He further averred that the chevron reflectors on the trailer had been positioned at a height of one and a half metres from the ground instead of the statutory one metre and twenty centimetres.
Following a trial, the High Court dismissed the appellant's claim. Dissatisfied with such finding, the appellant has appealed to this Court.
The main question for determination is whether the court a quo erred or misdirected itself in reaching the conclusions that it did, on matters of fact, based on the evidence before it.
The court a quo found the respondents' version of events more credible. The learned judge stated as follows:
“The plaintiff's version of 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 oncoming vehicle. There were disquieting features in the plaintiff's version…,; he calculated his speed from the distance that his vehicle stopped after the collision…,; applying his own method of calculation, he would have been travelling at double the speed he indicated. If his calculations are correct, he would have been travelling at twice the speed he deposed to.”
It was the appellant's testimony, during the trial, that, he was travelling at 80 kilometres per hour at the time when the accident occurred.
On this aspect, the court a quo found that:
“His speed would have been between 140km/h and 160km/h. More importantly, by relying on the distance travelled 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 travelling at when the collision occurred. The tone of his version indicated that he commenced to overtake but returned to his lane 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 much earlier from the light cast by the oncoming vehicle. He did not explain why he kept his headlamps deflected in the face of the full beam.”
On being questioned about this finding, the appellant submitted, before us, that he is an electrical engineer and that his reason for failing to see the tractor on time, and for opting to ram into it, was that he noticed electric pylons to his left which were 100 metres apart and he calculated that if he chose to go to his extreme left, he would collide with an electricity pole and meet with instant death by electrocution.
It seems to me, that, if the appellant was alert enough to perceive electric poles to his extreme left, he ought to have been alert enough to see the tractor, which was in his direct line of vision. If he was travelling at 80 kilometres per hour, as he maintains, then he ought to have noticed the tractor earlier than he did.
I detect no error in the finding by the court a quo, that, the appellant commenced to overtake but attempted to return to his lane because he had misjudged the distance of an approaching vehicle.
In our view, the court a quo correctly found that:
“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 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 oncoming vehicle as he was overtaking the trailer.”
According to COOPER, “Delictual Liability in Motor Law”, Revised Ed. of Motor Law: Vol. Two – Principles of Liability…, a vehicle travelling at a speed of 160 kilometres per hour would require a braking distance of 44,4 metres.
I find this calculation consistent with the findings of the court a quo that the appellant was likely to have been travelling at around 160 kilometres per hour.
The Traffic Accident Book (TAB) reveals that the appellant must have been travelling at an excessive speed. It also shows that the tractor travelled a distance of 81 metres from the point of impact and the car and trailer moved a distance of 19 metres. The gouge marks made by the tyres of the vehicles after impact indicate that the braking distance was too small to enable the appellant to brake safely and avoid colliding with the trailer. Instead, his vehicle was pulled along with the tractor and trailer following the impact.
This is wholly consistent with the impact at considerable force caused by the speed at which the appellant must have been travelling when his vehicle collided with the rear of the trailer.
