The plaintiff issued summons claiming damages arising from a motor
vehicle accident which occurred on 18 May 2007. The plaintiff's claim is
founded on allegations that the accident was solely due to the
negligence of the first defendant in that:
(a) He attempted to overtake another vehicle in the face of the plaintiff's vehicle;
(b) He drove at an excessive speed; and
(c) That he failed to take evasive action or act reasonably when an accident was imminent.
The defendants denied that the first defendant was negligent.
They
pleaded that the plaintiff was driving at an excessive speed in the
circumstances and failed to take evasive action to avoid the accident
when it was imminent. The defendants pleaded, in the alternative, that,
there was contributory negligence on the part of the plaintiff.
The defendants filed a counter-claim also claiming damages arising from the accident.
The following facts are common cause:
The
collision between the parties' motor vehicles occurred at approximately
11am on 18 May 2007 on the 11km peg along the Mazowe-Mvurwi road. The
plaintiff was driving a Mazda 929 and was proceeding from Harare to
Concession. The first defendant was driving a Toyota Hilux pick/up truck
owned by the second defendant and was proceeding from Concession to
Harare.
The first defendant was driving the truck during the course of his employment with the second defendant.
The
description and topography of the scene of the accident was that there
was a blind rise at the scene and an embankment on either side of the
road. There was tall grass on the verge of both sides of the road. There
was a railway crossing in the direction from Harare just before the
scene of the accident and a curve just after the railway crossing.
At
the time when the accident occurred, there was a lorry in the first
defendant's lane. The point of impact was on the outer edge of the
plaintiff's side of the road. Upon impact, the plaintiff's vehicle
veered to the incorrect lane and hit into the lorry. The defendant's
vehicle landed in the embankment. The plaintiff applied brakes before
impact resulting in skid marks extending for 36 metres. The first
defendant also applied brakes resulting in skid marks extending for 33
metres. Both parties sustained severe injuries requiring their
hospitalization for some days. Their vehicles were extensively damaged.
On 25 June 2007, the first defendant paid an admission of guilt fine of ZW$2,500.
Two main issues were referred to trial:
(i) The first issue for determination is who between the plaintiff and the first defendant caused the accident.
(ii) The second issue relates to the quantum of damages due and payable by the party found at fault.
Liability
The
plaintiff testified, in her evidence-in-chief, that, on 18 May 2007 she
left Harare for Concession where she was going to collect her daughter
from Barwick School, 100km from Harare. When she came to the railway
crossing she stopped and only proceeded after she satisfied herself that
it was safe to do so. She suddenly noticed a large lorry in the other
lane travelling slowly in the opposite direction.
She was, at this stage, travelling at about 50km/hr.
At
about the same time, she observed the first defendant's vehicle in her
lane coming from the opposite direction overtaking the lorry. The
vehicle was between 20 and 30 metres away. The speed of the other
vehicle was such that the first defendant could not go back into his
lane. The first defendant must have been travelling at about 60km/hr.
She had not been able to see the vehicle earlier because of the tall
grass on the verge of the road. When she realized that an accident was
imminent, she applied brakes fully, and, at the same time, moved to the
extreme left in the hope that the other vehicle would be able to pass
between her vehicle and the lorry. The other vehicle however moved to
its extreme right in the same direction she was moving resulting in the
collision. The collision occurred at the far edge of the road.
It
was her evidence that the first defendant caused the accident in that
he encroached into her lane as he was overtaking the lorry. He was also
travelling at an excessive speed and failed to avoid an accident when it
seemed imminent.
Under cross examination, the plaintiff contradicted her evidence-in-chief and her summary of evidence.
Although
in her evidence-in-chief she had said she was going to Barwick School
to collect her daughter, she had difficulties in explaining why, in her
summary of evidence, she had stated that she was going to attend a
parents meeting. She stated that she left Harare at around 10am because
the meeting was at 11am; yet, in the summary of evidence, she had stated
that she left home at 8:30am.
Her explanation for the
contradiction was that she had left her home at 8:30am to buy groceries
first for use in Harare but left Harare for the school at around 10am.
However, this explanation does not appear in the summary of evidence.
In
the summary of evidence, she stated that because she left at 8:30am for
an 11am meeting, she was not in a hurry and was travelling at a safe
speed of 90km/hr.
The accident occurred at about 11am and about 50km from the school.
If
she were to abide by her summary of evidence, it would have meant that
despite travelling at 90mk/hr, she had only travelled a distance of 50km
in two and a half hours....,.
The
plaintiff also gave contradictory evidence on whether or not the lorry
in the first defendant's lane was moving or stationary.
Although
in her evidence in chief she had stated that the vehicle was moving
slowly, she changed her evidence under cross-examination and stated that
she thought that she had seen it moving slowly but could no longer
recall whether or not it was stationary.
In her
evidence-in-chief, she stated that she saw the first defendant's vehicle
when it was already overtaking the lorry. However, it appears that she
had seen the first defendant's vehicle well before he had commenced to
overtake the lorry.
In her summary of evidence, she had stated as follows:
“3.5
Behind it (the lorry) the Plaintiff noticed some movement which, whilst
not very apparent, was incongruous to the movement of the Mercedes Benz
truck aforesaid.
3.6 In a flush, whilst the Plaintiff was still
trying to figure out the movement behind the truck, and whilst she was
still about 30 or so metres away from it, The First Defendant's vehicle
zoomed into her lane of travel, and like a missile, shot at her
vehicle.”
In answer to the question, under cross examination, on
whether or not she saw the defendant's vehicle behind the lorry she
stated:
“That is why I said I saw some movement, maybe the tyres under the lorry.”
It
appears that she therefore contradicted herself that she first saw the
first defendant when he was already overtaking the lorry. She, again,
could not satisfactorily explain the contradiction.
There is a presumption that events are clearer nearer to the date of accident.
The
fact that there were major shifts in the plaintiff's oral evidence and
her summary of evidence raised the suspicion that her oral testimony had
been altered to cover up for the loopholes that were in her summary of
evidence. This, in my view, tainted her credibility....,.
Arising from the above contradictions, I am of the view that the plaintiff was not a truthful witness....,.
Sergeant Fanizo Felix, the investigating officer, was not shaken under cross-examination....,.
This witness attended the scene soon after the accident, before any of the witnesses had been influenced by any of the parties to testify in their favour. In fact, the parties had been incapacitated and taken to hospital when he attended the scene of the accident.
I therefore do not have a basis for disbelieving his evidence....,.
The first defendant denied liability in the main and pleaded, in the alternative, that, the plaintiff contributed to the collision.
He testified that he joined the main road from a side road at about 400m from the point of impact. He was travelling at a speed of 65km/hr. As he approached the scene of accident, and at the start of a curve, he observed a stationary lorry occupying the entire left lane. He reduced speed and engaged the third gear. He moved slightly into the right lane in order to see if the lane was clear so that he would pass the lorry safely. He did not see any vehicle approaching from the other direction. He had reduced the speed of his vehicle to 20 to 30km/hr. He increased when he started to pass the lorry.
As he was now passing the lorry he observed an oncoming vehicle.
The vehicle was travelling at a very high speed straddling the centre line and therefore encroaching into his lane. He could not move back into his lane as he was now passing the lorry. He applied brakes, and, at the same time, moved to the extreme right side of the road and pulled off the road intending to give way to the oncoming vehicle to pass between him and the lorry. He could not move any further off the road because there was an embankment on his right hand side.
The plaintiff moved back to her lane at the same time as he moved to the extreme right and applied her brakes. The plaintiff's vehicle skidded out of control towards where he had stopped his vehicle. The two vehicles collided on the verge of the road, off the plaintiff's lane. As a result of the impact, his vehicle was pushed for about five meters backwards and landed in the embankment.
Two days after he was discharged from hospital, following the accident, he was invited to Mazowe Traffic Police to give his statement. He stated that when he first wrote the statement he did not include the distance that he was travelling at when the accident occurred. He inserted the speed of 65km/hr upon inquiry by the police. He had intended to insert it as the speed that he was travelling at when he first saw the lorry. He attributed the error to the trauma he was going through and the sedation he was under.
He admitted to paying an admission of guilt fine on the advice of Sergeant Fanizo. He was told that if he went to court and was convicted he would pay a heavy fine and lose his driver's licence. Sergeant Fanizo advised him that it was better for him to admit that he was driving without due care and pay a nominal fine than go through the inconvenience of a trial.
He confirmed that he gave a statement to the police at the scene of the accident when he went to make indications.
He testified that after he had paid the admission of guilt fine, he visited his lawyers on a different issue. He explained to his lawyer about the accident. Upon advice, he then realized the implications of his admission of guilt. He then deposed to an affidavit and gave it to Mazowe Traffic Police section seeking to change his plea.
There were contradictions in the first defendant's evidence which became apparent under cross examination.
Whilst in the Traffic Accident Book (TAB) he stated that he was overtaking the lorry at a speed of 65km/hr, in his oral evidence, he sought to reduce the speed to 20-30km/hr. In the Traffic Accident Book (TAB), he stated that the speed would have been 20-30km/hr at the point of collision, yet, in evidence, he stated that he was stationary....,.
In fact, the statement by the first defendant, in the Traffic Accident Book (TAB) that he was travelling at a speed of 20-30km/hr at the point of impact contradicts his evidence-in-chief that the impact occurred after he had stopped.
The fact that he was still in motion is consistent with the plaintiff's evidence and the indications by Sergeant Fanizo of the point of impact on the road. The averments by the first defendant, that he was stationery, cannot therefore be true.
