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 ...
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 section
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 section 6 of the Road Traffic (Public Service
Vehicles Drivers) Regulations 2006, S.I.168 of 2006. He was fined US$50=, 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=, US$32,484= and US$35,000=….,.
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 drive 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….,.
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 1988 (1) ZLR 299 (H).
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….,.
1….,.
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%.
