OMERJEE
AJA: 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 7.30 p.m. 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$30,000.00 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$2,000.00 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$10,000.00 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 unroadworthiness 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
uninsured 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, 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,
at p492, 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.
During
his evidence-in-chief before the court a
quo, the appellant
testified that a vehicle drove past his vehicle from the opposite
direction immediately before the accident. It was suggested to the
appellant during the course of the hearing that if a vehicle went
past him it would have had its lights on high beam and then dipped
them when it went past. This should have enabled the appellant to see
the tractor and trailer which was directly in his path. Appellant's
submissions were unsatisfactory. He maintained that if the oncoming
vehicle had dipped its lights he would only have seen the obstruction
in the road at a distance of 13 metres before impact.
The
author Cooper, in Delictual
Liability in Motor Law
(op. cit)
at pp 147-148, states that:
“The
prudent motorist driving on a road that is commonly used by the
public should foresee the possibility of encountering stationary,
slow, or fast moving traffic, pedestrians, animals and obstructions
generally, and of being confronted with a diversity of situations
(both usual and unusual), which may create actual or potential
emergencies. He should appreciate that other road users enjoy an
equal right to use the road and that the law imposes reciprocal
duties on all persons using the road. To ensure that he does not harm
other road-users a motorist should drive at a speed at which he is
able to stop within his range of vision…a driver of a vehicle which
collides with a conspicuous obstruction is on the horns of a
dilemma-either he was not keeping a proper lookout or, if he was
keeping a proper lookout, he was travelling at a speed at which he
was unable to stop his vehicle, i.e. at an excessive speed”.
See
Marine & Trade Ins
v Van der Schyff 1972 (1) SA 26 (A) 34B-C.
The
appellant's submissions criticising the findings of the trial court
were unfounded in regard to the evidence adduced by the defendant at
the trial.
The
court a quo
found that:
“The
first defendant gave a straightforward account of what transpired.
That account was confirmed by Ndodo and Kakorera. I am aware that by
virtue of their employment with the second defendant, these witnesses
could have colluded to give complementary evidence. It was, however,
the duty of the plaintiff to expose their complicity under cross
examination.
Their
evidence was consistent both in chief and under cross examination.
They were honest on their shortcomings.
Ndodo's
version on the stage at which plaintiff braked was confirmed by the
plaintiff's own witness Shawn Munawa. Their versions were unscathed
by cross examination. The probabilities supported their testimonies.
I believed them”.
I
am of the view that the court a
quo did not make any
error of fact, or of law, or fail to take into account relevant
considerations or take into account irrelevant considerations, in its
assessment of the witnesses' testimony.
I
now proceed to determine the issue of liability in the light of the
evidence led.
The
question for consideration is whether the accident was caused either
as a result of the negligence of the 1st
defendant or the condition of the tractor and trailer, or by both.
The
court a quo
found that:
“The
onus to prove that the collision was caused by the first defendant's
manner of driving or by the use of an unroadworthy tractor and
trailer lies on the plaintiff…the plaintiff failed to establish how
the failure to hold a driver's licence or permit affected the
manner in which the first defendant drove the tractor and the trailer
that night…”
And
that:
“It
was the first defendant and Ndodo's uncontroverted testimonies that
two other vehicles had overtaken the tractor and the trailer while
travelling in the middle lane without any mishap. It was apparent
from the plaintiff's version that the tractor driver maintained a
steady course. The plaintiff neither stated nor suggested that the
second defendant meandered from his initial course into the
plaintiff's path when he commenced to overtake.
Both
the first defendant and Ndodo confirmed that the headlamps of the
tractor were on as were the four hazard flashing lights on the big
wheel of the tractor. The hazards were flashing as a warning to
traffic that there was danger lurking on the road. That these lights
were functioning was affirmed by the farm manager. The plaintiff did
not explain satisfactorily why he failed to observe these flashing
hazard indicators. He suggested that his view was obstructed by
passengers who were seated inside the trailer. He failed to explain
why he failed to observe the amber light waves that were cast by the
flashing hazard indicators.”
The
trial court rejected his testimony that the hazard lights of the
tractor were off.
It
is clear that the appellant saw the tractor in time and commenced to
overtake. It was only while he was doing so that he realised that he
had misjudged the distance of the oncoming vehicle. He decided to
return to his lane. Given the speed at which he was travelling he
rammed into the rear of the trailer. It is clear that the the
accident was not caused by the unroadworthiness of the trailer, but
by the excessive speed at which the appellant was travelling.
The
position at law regarding what an appellate court may do and when it
may interfere with findings of fact made by a trial court, is trite.
In
Aidan Beckford v
Elizabeth Anne Beckford SC25/09
SANDURA JA at p6 of the cyclostyled judgment,
stated that:
“It
is quite clear that the learned judge made specific findings of fact
with regard to the credibility of the parties and their witnesses. As
has been stated in a number of cases, an appellate court would not
readily interfere with such findings. This is so because the
advantage enjoyed by the trial court of observing the manner and
demeanour of witnesses is very great”.
In
Hama v National
Railways of Zimbabwe 1996
(1) ZLR 664 (S), 670C-D KORSAH JA said:
“The
general rule of law, as regards irrationality, is that an appellate
court will not interfere with a decision of a trial court based
purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at such a
conclusion...”.
I
find that the court a
quo did not make any
mistake of fact which amount to a mistake in law.
The
grounds of appeal appear to be imputing irrationality to the decision
of the court a quo.
The appellant seems to be saying that the court a
quo misdirected
itself on the facts, to such an extent that it amounts to a
misdirection of law. In other words, despite the cogency of the
evidence before it, the court a
quo nevertheless went
on to reach conclusions that were not supported by the evidence
before it.
This
Court is being called upon to decide whether, in the circumstances of
this case, having regard to the evidence placed before the trial
court, the findings complained of are so outrageous in their defiance
of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived
at such a conclusion. see PF
ZAPU v Minister of Justice, Legal and Parliamentary Affairs
1985 (1) ZLR 305 (S) at p326E-F.
A
careful analysis of the findings of the court a
quo reveals that this
Court cannot arrive at such a conclusion.
In
my view the court a
quo correctly and
properly examined the evidence before it, and the credibility of the
parties' witnesses. It believed the respondents' version.
This
Court cannot lightly interfere with the findings of fact of the lower
court, which heard the evidence and found the appellant to be
dishonest in his version of what transpired.
The
judge a quo
did not condone the statutory violations of the Vehicle Registration
and Licensing Act [Cap.13:14]
as alleged by the appellant, but simply found that the cause of the
accident was not the alleged defects, but the appellant's
negligence.
The
appeal is devoid of merit. In the result it is ordered as follows:
“The
appeal is dismissed with costs”.
ZIYAMBI
JA: I agree
GARWE
JA: I agree
Gollop
& Blank, respondent's legal practitioners
