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 fact that the time the accident occurred is the time when the meeting was supposed to commence, at a place 50km away from the scene of the accident, clearly indicates that she was already late for the meeting and discredited her statement in the summary of evidence that she was not in a hurry. It leads to the inescapable conclusion that she must in fact have been in a hurry and was travelling at a faster speed than she disclosed so as to be in time for the meeting.
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.
The plaintiff also had difficulties in justifying the 36 metre skid marks if she had been travelling at between 40 to 50km/hr.
It is common cause that the skid marks were made from the time when she first saw the first defendant to the point of impact.
She had just left a railway crossing where she testified that she had come to a stop. She was gathering speed when she saw the first defendant's vehicle about 20 to 30m away. Her vehicle was moving at 40-50km/hr. The two vehicles were approaching each other.
The 20 to 30m distance, from the first time she first saw the first defendant overtaking the lorry, would have been reduced significantly to less than 30m if the first defendant was travelling at the speed she estimated to be 65km/hr. The skid marks would therefore have been certainly less than 36 meters.
The plaintiff failed, again, to explain how she caused the 36 metre skid marks over a distance of less than 30 metres.
If I were to believe that she was travelling at 40 to 50km/hr and had reduced her speed further when she applied her brakes over a distance of 36 metres, the plaintiff could not explain how, upon impact, her vehicle pushed the first defendant's vehicle down an embankment.
The only inference to be drawn from these factors is that she was travelling at a high speed.
Arising from the above contradictions, I am of the view that the plaintiff was not a truthful witness.
She sought to underplay the speed she was travelling at.
She had just come from a railway crossing and was going up a blind rise with tall grass on the verge obscuring her vision. She had seen a movement behind the lorry and yet did not reduce her speed at that stage despite her limited vision.
It is therefore my finding that she was travelling at a high speed under the circumstances.
The second witness was Sergeant Fanizo Felix. He was the investigating officer.
He testified that he arrived at the scene of the accident about half an hour after the accident had occurred. Although the plaintiff and the first defendant had already been taken to hospital, the vehicles had not been moved.
The lorry which had occupied the first defendant's lane had been moved some distance away from the scene. He observed two sets of skid marks made by the plaintiff's and the first defendant's vehicles. The plaintiff's skid marks measured 36 metres and the first defendant's 33 metres.
He was advised by the witnesses who had observed the accident that the lorry had been stationery.
The witnesses indicated that the plaintiff had been speeding and he formed the same view because of the long skid marks. He however was of the view that the first defendant had also been speeding and was the proximate cause of the accident as he did not exercise due caution when he overtook the stationary lorry and that the accident occurred in the plaintiff's lane.
The first defendant approached him stating that he wanted to pay a fine which he freely did on 25 June 2007.
The witness was not shaken under cross-examination.
He conceded that the first defendant could not move back into his lane when he was overtaking because it was occupied by the lorry. He however, maintained that the first defendant should have proceeded when it was safe to do so.
The evidence of this witness contradicts the plaintiff's evidence that she was travelling at a safe speed. It further contradicts the plaintiff's evidence that the lorry was in motion.
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.
The first defendant could not have been travelling at a speed of 20 to 30km/hr as he had increased speed when he commenced overtaking the lorry.
The skid marks that were observed by Sergeant Fanizo, extending for some 33 metres, were not consistent with a vehicle that was travelling at a speed of between 20 and 30km/hr.
The first defendant therefore also sought to minimize the speed that he was travelling at before impact.
The difference between the plaintiff's and first defendant's skid marks is only three metres. Just like the plaintiff, the first defendant was also driving at a very high speed.
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.
I therefore find that the first defendant was travelling at an equally high speed under the circumstances.
The first witness who was called by the first defendant was Tongai Mutapanyama.
He testified that on the day in question, he was in the company of his friend, Maxwell Munyanga. They were walking in the direction of Harare. They passed a stationary Mercedes Benz lorry which had stopped in the lane facing Harare. He observed the plaintiff's vehicle proceeding from Harare towards Mvurwi. The vehicle was travelling at a very high speed. He commented on the speed and that it was being driven by a woman.
He then heard the screeching of brakes and observed the first defendant's vehicle coming from the direction of Mvurwi towards Harare. The first defendant's vehicle went off the road towards the right side and stopped. The plaintiff's vehicle skidded off the road and crushed into the first defendant's truck. Upon impact, the plaintiff's vehicle veered towards the lorry and hit it and then landed in the ditch. When the police arrived, the lorry had been moved because it was blocking free flow of traffic.
Under cross examination, Tongai Mutapanyama estimated that the plaintiff was travelling at the maximum speed the vehicle could go. He denied indicating to the police that the vehicle was travelling at 140km/h as contained in his statement to the police. He assumed that the police recorded that speed because he had stated that the vehicle was going “at its fastest speed”. He testified that the lorry had stopped nearer the centre line.
The second witness was Maxwell Muyanga. His evidence was substantially the same as Tongai Mutapanyama's evidence.
The plaintiff submitted that the two defence witnesses could not be believed as there was evidence that they discussed their evidence before the trial.
The plaintiff did not elaborate the basis for the alleged connivance.
The witnesses appeared to me to be very simple, unsophisticated, and candid. I believed their evidence when they testified that they could not have been able to estimate the exact speed the plaintiff was going at, other than indicate that she was travelling at a very fast speed because of their simplicity. However, I do not find their evidence that the first defendant was stationary at the point of impact to be true in view of the first defendant's own admission in the Traffic Accident Book (TAB) that his vehicle was still in motion on impact.
Upon examination of the totality of the evidence in both the plaintiff's and defendant's cases, I make the following findings:
1. Both the plaintiff and the first defendant were travelling at an excessive speed in the circumstances.
2. The lorry that was blocking the first defendant's lane was stationary at the relevant time.
3. Both parties were in motion on impact.
Contributory Negligence
The first defendant submitted that there was contributory negligence by both motorists and that the provisions of the Damages (Apportionment and Assessment) Act [Chapter 8:06] ought to be applied.
The stance taken by the plaintiff, as has already been noted above, is that she was not to blame at all for the collision and that the first defendant was the sole cause of the accident.
The onus to prove contributory negligence, on a balance of probabilities, lies with the first defendant.
It is common cause that the collision occurred on the extreme left side of the plaintiff's lane. The parties were in agreement that the general rule of the road requires a driver to keep to the left side of his or her lane of travel: see Klompas N.O. v Potgieter 1912 TPD 863…,; Gains Golden Grain Bakeries Ltd v Gouws 1929 TPD 137; and South African Motor Law, COOPER and BAMFORD, 1965…,.
However, as submitted by counsel for the defendants, the rule is not absolute. Counsel for the plaintiff was quite selective when he quoted Klompas N.O. v Potgieter 1912 TPD 863 and omitted the proposition that the rule of the road is not absolute.
WESSELS J observed, at 868:
“But, there is no obligation on a person who is riding or driving along a road to ride through all the ruts and other inequalities on the left of the road. He is at liberty to avoid such obstacles. If he can find a better part of the road, he is entitled to ride on that part of the road, especially when riding or driving in the country. But then, he must use more care than when he is on his own side of the road.
If there is a vehicle in the way, and he wishes to pass it, then whether the road on his left is rutty or not he must keep to his left.
The law with regard to this is laid down in two old and well-known cases.
In Pluckwell v Wilson (5 Carr. and P. 375) the following proposition is stated:
'A person driving a carriage is not bound to keep on the regular side of the road; but, if he does not, he must use more care, and keep a better look-out, to avoid collision, than would be necessary if he were on the proper part of the road.'
In Chaplin v Hawes and Others (3 Carr. and P.554), the law is stated as follows:
'Though the rule of the road is not to be adhered to, if, by departing from it, an injury can be avoided, yet in cases where parties meet on the sudden, and an injury results, the party on the wrong side should be held answerable, unless it appears clearly that the other party on the right had ample means and opportunity to prevent it.'
COOPER and BAMFORD, supra, also states, at 513, that:
'When a vehicle is driven on the incorrect side of the road, the driver must exercise greater care and take every precaution to avoid colliding with vehicles approaching him: he must recognize that persons travelling on the correct side of the road have a paramount right and are entitled to preference in the use of the road so that if any danger of collision arises, it is his duty first to give way.
Every driver must swing to his left as far, and as quickly, as possible in the face of approaching vehicles and the failure to do may be negligence.
If a collision occurs between two vehicles travelling in opposite directions, along the same road, when the defendant's vehicle is on the incorrect side of the road, the fact that it is on the incorrect side of the road is, as a general rule, prima facie evidence of negligence.
When a plaintiff proves that the defendant's vehicle, for no apparent reason, suddenly swerved on to its incorrect side of the road, an inference of negligence could, in the absence of an explanation, be drawn against the defendant - res ipos loquitur;
The defendant is then required to produce evidence sufficient to displace the inference of negligence which arises from the fact that he was on the wrong side of the road.
If he fails to do so, the prima facie evidence becomes sufficient to discharge the onus which rests on the plaintiff. But, if the defendant gives an explanation, the plaintiff can succeed only if, at the conclusion of the case, and on the evidence as a whole, there is a balance of probabilities in his favour that the defendant was negligent.'”
The rule of the road is therefore not absolute.
A defendant must establish that he had a reason for deviating from the correct side of the road and that he or she exercised greater due care than ordinarily exercised by a driver on his or her correct side of the road.
Although the fact that the collision occurred on the wrong side would be prima facie evidence of liability of the person on the wrong side of the road, the presumption can, however, be rebutted if the defendant can show that the other party contributed to the accident.
Turning back to the case at hand, I have already made a finding that the defendant was avoiding a stationary lorry in his lane when the accident occurred on his incorrect side of the road. However, given the obstruction, and the terrain causing limited visibility, the first defendant ought to have exercised greater caution and travelled at a safe speed. The skid marks clearly indicate the excessive speed that he was travelling at when he overtook the stationary lorry.
On the other hand, the plaintiff, upon seeing movement behind the stationary lorry, and because of the same challenges posed to the first defendant by the terrain, should also have exercised caution by reducing her speed. She failed to do so. She had just crossed a railway crossing and her speed should therefore have been greatly reduced.
Counsel for both the plaintiff and the first defendant conceded that the skid marks caused by both parties suggested that they were travelling at almost the same speed.
If that is so, then, both parties cannot escape the conclusion that they were both travelling at excessive speeds under the circumstances. Both were therefore negligent and failed to avoid the accident when it was imminent.
I am, however, of the view, that, given the fact that the accident occurred on the first defendant's incorrect lane, he bears the greater degree of fault. Therefore, I have come to the conclusion that the plaintiff's contribution to the accident was 40% and the first defendant's 60%.
