KUDYA
J: This matter involves a motor
vehicle traffic accident that took place between a white diesel powered 4 tonne
1983 Mitsubishi Canter truck registration number AAL 9904 belonging to the
plaintiff and a red Massey Ferguson 375 tractor towing a trailer belonging to
the first defendant. The truck was driven by the late Vandirayi Tevera, who
died from other causes after the accident but before trial, and the second
defendant, Lameck Gandidzanwa who was employed by the first defendant. The
accident occurred at the 204 kilometer peg along the Harare-Mutare road near
Chipembere in the Nyazura area on 28 February 2007 at around 1745 hours. It was
common cause that both drivers were acting in the scope of their respective
employment.
The
plaintiff sued for the delivery of a replacement vehicle of the same value as
the truck as at the date of judgment alternatively payment of the sum of money
equivalent to the value of the truck as at the date of judgment, and costs of
suit on an attorney and client scale. The defendants disputed liability and
counter claimed for varying relief with costs of suit. The first defendant
counter sued for the restoration, at the plaintiff's cost; of the tractor to
the condition it was in immediately prior to the accident within 30 days of the
date of judgment. In the alternative the first defendant sought the delivery of
a replacement tractor of an equivalent value and condition within 30 days of
the judgment; and in a further alternative sought a sum of money sufficient as
at the date of payment to pay for a replacement tractor similar to the accident
damaged one. The second defendant
counterclaimed for damages arising out of the injuries he sustained and the
loss of his property in an amount to be quantified prior to judgment.
At
the commencement of trial, the first defendant applied to amend his summons to
reflect that the amount he claimed for a replacement tractor was US$15 000-00.
The second defendant sought to amend his summons to reflect the sum of US$2
000-00 as the damages he claimed for pain, shock and suffering. Despite the
opposition mounted by the plaintiff, I granted the application as I was
satisfied that the plaintiff would not be prejudiced by the amendment.
THE ISSUES
At
the pre-trial conference held on 3 June 2009, the following ten issues were
referred to trial:
- What was the cause of the accident.
- Was either the plaintiff or second defendant solely
to blame for the accident
- If both the plaintiff and second defendant were
partly to blame for the accident, what were their respective degrees of
contributory negligence
- What is the quantum of the plaintiff's damages
- What is the quantum of the first defendant's damages
- What is the quantum of the second defendant's damages
- To what extent, if any, are the damages to be
apportioned between the parties
- If one of the parties is found solely liable, is the
innocent party entitled to receive a similar replacement vehicle
- In any event, are either the plaintiff or first
defendant entitled to assess their damages in the amount of the value of
their vehicles, or the cost of repairing the same, as at the date of trial
- Costs of suit
It seems to me that the issues for determination can be reduced to four.
These are:
- Who caused the accident
- Was their contributory negligence between the parties
- What is the measure of damages due to each party, if
any
- Costs of suit.
THE EVIDENCE
The
plaintiff testified and called the further evidence of Siza Tiba, one of his
drivers who was in the truck with Vandirayi Tevera. The defendants relied on
the evidence of Barend Daniel Moolman, the managing director of the first
defendant; the second defendant and Jonathan Patchette Horsefield, a branch
manager at Puzey and Payne based in Mutare. The parties produced a total of six
documentary exhibits.
Who caused the accident?
Siza
Tiba testified for the plaintiff and stated how the accident happened. He first
gave evidence on 22 July 2009. The traffic accident booked, exh 5, compiled by
Constable Mamvura, was produced after he had testified. He was recalled on 29
September 2009 to clarify certain issues that were recorded in the traffic
accident book. He was Vandirayi Tevera's co-driver on the day of the accident.
He was seated in the passenger seat in the cab while Tevera was driving. The
truck was carrying a load of timber. He observed the tractor, which was towing
a trailer full of firewood, driving in the same direction of travel. On top of
the firewood were some passengers who were drinking beer and singing joyfully. The
right hand wheels of both the tractor and trailer were on the yellow line on
the extreme left of the road. When Tevera saw it, he reduced his speed from 60
km/hr to 30 km/hr. He remained in his lane of travel. He had passed the trailer
when the tractor suddenly turned right into his lane of travel. Tevera swerved
to the right into the lane of on coming traffic. In doing so he crossed the
unbroken white line which was in the middle of the road. The front part of the
truck hit the big wheel of the tractor. The tractor broke into two. Both the
truck and the tractor landed in the ditch on the right hand side of the road.
The cab of the truck was extensively damaged but the engine was still running.
The witness together with Tevera and the second defendant were ferried to
hospital. He blamed the tractor driver for causing the accident by traveling
off the road when he intended to turn right into the first defendant's farm;
and by failing to indicate either manually or mechanically his intention to do
so. His opinion that the second driver was to blame for the accident was
confirmed by exh 3, the police outcome report of the accident, and p 1 of exh
5, which showed that the second defendant paid a deposit fine of $2 500-00 on Z
69 (j) receipt number 4106964 on 11 April 2007 for driving without due care and
attention in contravention of s 51(1) of the Road Traffic Act [Cap 13:11].
Under
cross examination he maintained that the tractor was traveling off the road. He
was shown exh 1 and 2, the two photographs of the place where the accident
occurred. Mr Edkins, for the
defendants, asked him to clarify whether the left wheels of the trailer were on
the tarmac or the grass verge which covered the gravel or in the ditch. The
witness was unsure whether they were on the tarmac or on the gravel but was
adamant that the right hand side wheels of the trailer were on the yellow line.
He maintained the version he gave in his evidence in chief on how the collision
occurred. He disputed the suggestion that the accident occurred because Tevera
was overtaking the tractor on a blind rise, against the prohibition marked by
the unbroken white line and on an intersection to the first defendant's farm.
He was adamant that the tractor driver did not indicate and that both the
tractor and trailer did not have indicators.
He
was questioned on the contents in exh 5 that the two passengers who were in the
cab of the truck were Fatima Sande and Zondai Japan. His name was recorded on p 3
of the traffic accident book as the next of kin of Tevera whom the police were
to advise of the accident. He disputed the suggestion that he was not in the
motor vehicle and averred that he was injured and ferried to hospital. He,
however, was never interviewed by Constable Mamvura, who attended the scene of
the accident. He further averred that the two passengers were actually at the
back of the truck.
In
the absence of Constable Mamvura, it was not possible for the defendants to
challenge the evidence of Siza Tiba that he was present when the collision
occurred. Constable Mamvura did not conduct a thorough investigation of the
collision. He did not draw a sketch plan nor indicate which gears he found the
truck and tractor in. He did not indicate whether he found any indicators
flashing on either the truck or the tractor. What is apparent from exh 5 is
that he interviewed the drivers of the two vehicles in hospital. Siza Tiba
cannot be criticized over evidence that may have been omitted by the police
officer who compiled exh 5. After all he was not the author of the exhibit.
I
was satisfied that he was a percipient witness who saw how the accident
occurred. His testimony on how and where the accident occurred was confirmed by
the contents of the traffic accident book and by exh(s) 1 and 2. The witness'
preliminary views that the second defendant was the cause of the accident were
confirmed by pp 1 and 28 of exh 5 and exh 3. His version that the trailer was
full of firewood which was blocking the vision of the second defendant was not
refuted. The defendants did not controvert his version that the trailer was not
only full of firewood but carried some rowdy revelers who were drinking beer. I
found his version more credible than that of the second defendant.
The
second defendant testified on 22 July 2009 on his own behalf and on behalf of
the first defendant on how the accident took place. He stated that he was
driving a tractor which was towing a trailer that was carrying a load of
firewood and some passengers. When he reached the intersection to the farm, he
indicated his intention to turn right by putting on the indicators. In addition
he manually used his hand to show his intention to turn right. He fully turned
the tractor into the dirt road which leads to the farm. The trailer was still
on the tarmac when he was hit by the truck on the right rear wheel of the tractor.
The tractor was broken into two. Its wheels came off and only one wheel
supported it. The trailer disconnected. He was thrown off his seat, fainted,
fractured his collar bone and jaw and lost some molar teeth. He was
hospitalized for two weeks. He averred that he was still in pain from the
accident. He stated that he lost his jacket and with it his tractor driving
permit. He disputed ever paying a deposit fine of guilt to the police. He
produced exh 4, a copy of the statement he gave to the police. It is an extract
from p 23 of the traffic accident book. It was written in Shona and translated
into English at court by Mr. Ncube, a court interpreter. He stated thus:
“I was coming
from fetching firewood intending to turn so that I could go to the right. I
started indicating to turn to the right, I was using my hand. I then turned to
the right; at that point I heard the sound of the impact. That is all I know. I
was bumped into by a lorry that was following behind, the one which was then
overtaking me.”
Under
cross examination he stated that he was traveling in his lane of travel. He
maintained that he manually and mechanically indicated. He disputed ever paying
a deposit fine and suggested that his wife may have done so to stop the police
from pestering him. He stated that the impact took place on the edge of the tar
in the lane for on coming traffic just past the turn off near the point marked
with an X on exh 1. Moolman confirmed that the point of impact was just after
the turn off. The second defendant did not proffer an explanation on why he
passed the turn off to the farm. He opined that the truck driver was speeding,
overtaking on a blind rise against a prohibition marked by an unbroken white
line and close to an intersection into the first defendant's farm. He denied
contributing to the accident.
To
arrive at a determination of who was responsible for causing the collision I
must compare the versions given by the Siza Tiba and the second defendant who
were present at the scene of accident. The second defendant failed to
demonstrate that he was licensed to drive a tractor at the time of the
accident. His explanation that he lost the permit with his jacket seems
doubtful for two reasons. Firstly he did not call any evidence to show that he
was wearing a jacket on this day and that that jacket was lost. Secondly, his
managing director, Moolman never saw the permit. He was only aware that he used
to drive a tractor for a former employer. That employer was not called to
confirm that he had issued him with a permit to drive a tractor. The second
defendant gave false evidence on the payment of a deposit fine for driving
without due care and attention. He vehemently denied having paid such a fine in
the face of an admission in his pleadings that he had done so. In my view, s
31(3) of the Civil Evidence Act [Cap 8:01] operates against the second
defendant. It presumes that he did all the acts or omissions which constituted
driving without due care and attention. The evidentiary burden fell on him to
satisfy me that notwithstanding the conviction, the plaintiff's driver was also
negligent. As will be apparent below, he failed to discharge that evidentiary
onus. I found his vehement denials that he paid the guilty fine an attempt to
distance himself from the adverse operation of s 31(3) of the Civil Evidence
Act, supra, against him.
I
did not believe his version of how the collision happened. Moolman conceded
that a tractor would move off the road on the highway and would move into the
road in preparation to turn right. Siza Tiba averred that when he saw the
tractor for the first time it was moving off the road. When they were passing
it, it suddenly turned to the right without warning. That it suddenly turned to
the right without warning was apparent from the second defendant's version to
Constable Mamvura. He stated that he indicated using his hand. In court, he
averred that he used both his hand and mechanical indicators. Had he used
mechanical indicators before the accident, he would have said so. His silence
on the point confirmed Siza Tiba's version that the tractor did not have
mechanical indicators. In any event, as he was using hand signals, he should
not have executed the turn before he satisfied himself that the driver of any
vehicle behind him had noticed his indication and understood his intention. He
was carrying a load of firewood which was obstructing his vision; he ought to
have utilized the services of one of the passengers in the trailer to make the
indication to turn right. He never looked behind him to satisfy himself that it
was safe to turn right. In any event he did not proffer an explanation on why
he had passed the turn off.
Siza
Tiba averred that as the truck was passing the trailer, the tractor turned
right in front of them forcing the driver to swerve to the lane of on coming
traffic and colliding with the rear wheel of the tractor. His version was that
when the collision took place the tractor was in the lane of oncoming traffic.
The second defendant claimed that the rear wheel of the tractor was hit by the
front of the truck when the tractor was in the dirt road leading to the farm.
It was clear from the pleadings that the point of impact was in the lane of on
coming traffic, hence the suggestion by the defendants that the truck was
overtaking the tractor. The second defendant's version on the point of impact
was therefore false. As the truck driver was in the process of overtaking the
trailer at the time the tractor suddenly turned in front of him; he could not
swerve to the left nor attempted to stop without hitting the trailer. The only
option open to him would have been to swerve to the right as he did. It seemed
to me that the truck driver was faced with a sudden emergency and sought to
avoid a collision by swerving to his right. That the tractor broke into two was
not necessarily due to the speed that the truck was moving at but could have
been due to the combined weight of the truck and the load that it was carrying.
I
believed Siza Tiba and disbelieved the second defendant. I hold that the second
defendant was the sole cause of the accident.
Was their contributory negligence?
Mr
Edkins contended that the plaintiff's
driver contributed to the collision. He based his contention on the
measurements purportedly of the scene of the accident done by Jonathan
Patchette Horsefield on 23 July 2009, at the request of the first defendant.
Horsefield has been with Puzey and Payne for 30 years and has been a branch
manager for 18 of those years. He has dealt with the first defendant for the
past 14 years. These measurements form part of exh 6 and are found under the
heading “main highway measurements between Odzi and Nyazura”. He indicated that
the width of the lane from the center white line to the yellow line was 3 000
millimeters and the width of the remaining tarred portion between the yellow
line and the grass verge was 1 700 millimeters.
Horsefield
did not take the measurements of the actual vehicles that were involved in the
collision but was content to adduce evidence on the measurements and
specifications of a new 375 4 wheel drive Massey Ferguson tractor and the
measurements of a new Mitsubishi Canter that were in his employer's showroom.
He indicated that the minimum width of the tractor was 1 871 millimeters but
when it is land tracking the width could be adjusted to between 1 376 to 1944
millimeters for the front wheels and 1 431 to 2 131 millimeters for the rear
wheels. He gave the width of the Mitsubishi Canter as 2 137 millimeters.
The measurements of the road, truck, tractor
and trailer were supplied by the defendants in a bid to demonstrate that Siza
Tiba falsely claimed that the tractor and trailer could fit in one lane. Siza
Tiba did not make such an averment. He stated positively that the right side
wheels of the tractor and trailer were traveling along the yellow line while
the truck was in the left lane. He did not suggest that both the tractor and
its trailer and the truck were moving abreast in the same lane. There is a
reason why a police prepared plan of the scene of accident is preferred where
the court does not go for an inspection. It is because the police take the
actual measurements of the scene when the incident is still fresh and draw a
sketch plan or the actual diagram using those measurements and the versions of
the parties and witnesses to the accident. The measurements proffered by the
defendants were measured by a witness whom they called who did not witness the
accident. He visited some spot along the Odzi-Nyazura highway and took some
measurements. I do not know whether he took measurements at the scene of
accident. He took them on his own; in the absence of a representative of either
party. In my view, his measurements are therefore unreliable. He appears to
have been biased in favour of the first defendant because of his 14 year
association with it. Horsefield' evidence was at variance with that of Moolman
on the width of the trailer. Moolman stated that the trailer was 6 to 7 meters
and the tractor was 2½ meters wide. Horsefield stated that it was narrower than
the tractor. Indeed, in the absence of the actual measurements of the vehicles
that were involved in the collision and of the scene of accident by an
independent party, the evidence of Horsefield did not assist the defendants to
show that the plaintiff's driver contributed to the accident.
I
am unable to find any contributory negligence on the part of the plaintiff's
driver. Accordingly I hold that the second defendant, who was acting in the
course of his employment with the first defendant, was the sole cause of the
collision. I therefore answer the second issue, as framed by me, in favour of
the plaintiff.
The measure of damages
The
plaintiff gave evidence on the nature of his claim against the defendants. He
is a Zimbabwean who is based in South
Africa where he operates a security company.
He stated that he simply wanted his vehicle in the same condition as it was in
at the time of the accident. He averred that his truck was a write off. He
holds the wreck, gear box and engine.
Under
cross examination he could not say whether or not the vehicle could be
repaired. He revealed that the differential, engine, gear box and axle were not
intact. While in his further particulars he indicated that the pre-accident
value of the motor vehicle was $3 billion and the post accident value was $350
million, under cross examination he did not confirm these figures but averred
that he had bought the vehicle for R110 000-00. He further stated that after
buying the truck in South
Africa, he replaced the engine and gear box
with the ones that were on the vehicle at the time of the accident. He then
imported the vehicle into Zimbabwe.
He did not disclose the cost of the replaced parts and the labour. The
plaintiff averred that the defendants could restore his pre- accident truck
either by purchasing a truck similar to or buy one of equivalent value to the
accident damaged one. He did not produce an assessor's report of the state of
the vehicle after the accident. He confirmed that the engine, gear box, front
axle, differential, fuel tank, side boards and tyres were still usable. He
would need to replace the front cab, radiator, steering rack, propel shaft to
put the truck back on the road. He
reiterated that he was not seeking any damages.
The
plaintiff's claim was one of specific performance. He did not seek an
alternative of damages. In his oral submissions Mr Phiri, for the plaintiff conceded that the plaintiff did not lead
any evidence to show that the truck could be restored to its pre-accident state
by replacing the damaged parts. He further conceded that restoration was not a
competent claim. The plaintiff did not quantify the damages he suffered. While
in his summons he sought the pre-accident value of the truck, in his evidence
in chief he failed to quantify that value.
The
practical difficulties of restoring an accident damaged vehicle to its
pre-accident state were demonstrated in the case of Leighton v Eagle Insurance
& Ors HH 193-02 at p 1 of the cyclostyled judgment. The parties in that
case agreed that the defendants would repair the plaintiff's accident damaged
motor cycle at a particular firm using second hand parts. The motor cycle was
duly repaired but to the dissatisfaction of the plaintiff. He abandoned the
agreement and sought damages. In the present matter the plaintiff confirmed
those practical difficulties. While it is easy to claim for restoration, it is,
in my view, impossible to lead evidence to show on a balance of probabilities
that the defendants are able to repair the truck to its pre-accident state, to
the satisfaction of the plaintiff. The parts that were on the truck before the
accident were not new. The use of new parts would not restore the truck to the
pre-accident state. It would be difficult for the plaintiff to measure the
“oldness” of the damaged parts and thereafter to find equivalent parts on the
second hand market to fit onto the truck and restore it to its pre-accident
state. It seems to me that to restore the truck to its pre-accident state is an
impossible feat. The plaintiff failed to lead evidence to demonstrate that a
vehicle similar to the truck before the accident could be purchased for him.
Without a clear technical report on the state of the truck before the accident,
it would be hard for the defendants to fulfill any restorative order of court.
In any event it would be impossible to enforce such an order which would depend
on the whims of the plaintiff. The plaintiff failed to discharge the onus on
him to show that it could be done.
The
plaintiff hamstrung his case by his failure to plead for damages in the
alternative. His alternative claim for the value of an equivalent truck prior
to the accident was not quantified. He distanced himself from the original
figure he supplied in his further particulars. He did not give due thought in
the formulation of the relief he sought. He did not lead evidence of the
pre-accident value of the truck. While he suggested that it was a write off, he
did not lead any professional evidence to confirm his opinion. It appeared from
his evidence that the truck had a salvage value. He did not state what that
salvage value was. His alternative claim like the main one fails for lack of
evidence.
I
am unable to grant the plaintiff the relief he seeks. Absolution from the
instance is appropriate in these circumstances.
THE COUNTERCLAIMS
In
the absence of liability on the plaintiff's part, the counter claims of both
defendants must fail. It is unnecessary for me to analyze the evidence led by
the defendants to prove their respective damages.
COSTS
Both
counsel were agreed that party and party costs should be awarded to the
successful party. The plaintiff discharged the onus on him that the defendants
caused the collision. He failed to prove his claim. He is entitled to his costs
of suit.
DISPOSITION
Accordingly, it is ordered that:
- The defendants are granted absolution from the
instance.
- The counterclaims of the defendants are dismissed.
- The defendants shall pay the plaintiff's costs of
suit, jointly and severally, the one paying the other to be absolved.
Mugadza, Mazengero & Dhliwayo, plaintiff's
legal practitioners
Coghlan, Welsh &
Guest, 1st and 2nd defendants'
legal practitioners
