The facts of the case are these.
On 12 February 2010, at about midnight, the appellant was a
passenger in a 25-seater minibus belonging to the second respondent and driven
by the first respondent within the scope and course of his employment, from
Beitbridge to Harare plying the Harare-Masvingo highway. At the 45km peg, the
minibus was involved in a collision with the rear right side of a trailer being
pulled by a Malawian registered horse truck. As a result of the collision, the
minibus overturned and lay on its right side in the lane for on-coming traffic.
The appellant, who had fallen asleep, woke up to find herself trapped under the
back seat where she had been sitting. She sustained severe injuries to the
right forearm in respect of which she later received treatment in the form of
debridement and skin grafting.
On 10 September 2010, the appellant issued summons against
the first and the second respondent, claiming damages for the injuries
sustained in the sum of US$71,050= with interest at the prescribed rate of 5%
per annum with effect from February 2010 and costs of suit. The amount of
damages was later reduced to US$36,475=. The appellant alleged, in the
declaration, that the cause of the injuries she sustained was the negligence of
the first respondent. She gave the particulars of negligence as being the
following:
“1. He was not a holder of a class one driver's licence
which is a requirement for one to drive the 25 seater commuter omnibus which he
was driving;
2. He was following too close to the Toyota Dyna motor
vehicle which was travelling in front of him in the same direction along the
Beitbridge-Masvingo road;
3. He failed to keep a proper lookout in the circumstances;
4. He was travelling at an excessive speed in the
circumstances;
5. He failed to keep his vehicle under proper control; and
6. He failed to stop or act reasonably when the accident
seemed imminent.”
The first and the second respondents denied liability, particularly
that the first respondent was negligent in any way in the manner he drove the
vehicle or as alleged by the appellant. They pleaded that the omnibus was hit
by a passing motor vehicle with a Malawian registration number. In their
summary of evidence, the first respondent repeated the allegation that his
motor vehicle was hit by a trailer with a Malawian registration number. He
suggested that the motor vehicle was involved in a side-swiping collision.
The evidence before the court a quo was, briefly, as
follows:
Liah Mugonapanja, the first witness to testify for the
appellant, said she was seated on the front seat by the window behind the
driver's seat. She said she saw the trailer which was ahead of them. The first
respondent had been driving fast and had not seen that the trailer was
stationary. She said she drew the attention of the driver to the fact that he
was about to collide with it. He swerved to the right to avoid colliding with
the trailer. The omnibus overturned and lay on its right side in the lane for
oncoming traffic. She said the first
respondent did not apply brakes and indicated that the road where the accident
took place was straight.
The second witness for the appellant was Cedon Moyo.
He said that on 11 February 2010, he boarded a minibus in
Harare going to South Africa. In that minibus, the first respondent was a
conductor since he was collecting the tickets. When Cedon Moyo boarded the same
minibus, around midnight, at Beitbridge, back to Harare he noticed that the
first respondent was now the driver of the vehicle. He was sitting in the front
seat between the wheels on the left side of the vehicle. He said that at the
45km peg he saw the trailer which appeared to have stopped in front of the
vehicle. The first respondent had been travelling at an excessive speed. As he
was sitting next to the left front door he was able to see what was happening.
When his attention was drawn to the presence of the trailer, the first
respondent panicked and swerved to the right without applying brakes. The
vehicle hit the trailer and overturned and rested on its right side. He said it
appeared as if the first respondent had fallen asleep and had not kept a safe
distance between his car and the vehicle ahead of him.
The appellant produced a report which showed that the
minibus was damaged on the front grill, the head lamps and park lights and the
windscreen….,.
The witness, one Elina Ruvengo, said she was sitting in the
front seat on the right by the aisle. At the 45km peg, she saw the trailer
which was being pulled ahead of them. The first respondent wanted to overtake
the trailer which was in front of them. As he moved to the lane for oncoming
traffic, to prepare to overtake, the trailer uncoupled from the horse and moved
to its incorrect side of the road thereby partially blocking their way. The
minibus hit the trailer with its left side and fell on its right side on the
lane for oncoming traffic.
The first respondent then gave evidence.
He said he was driving behind the trailer until he was 80
metres from it. He said he indicated his intention to overtake. As he was
preparing to overtake, the trailer un-hooked and moved towards the left side of
his vehicle. He applied brakes as people screamed. As he held on to the
steering wheel, while applying brakes, the right rear side of the trailer hit
the front left side of his vehicle. He said that the impact was from the front
left side of his vehicle towards the left door. As a result of the force of the
impact, his vehicle overturned and lay on its right side on the lane of oncoming
traffic. He said he was driving at a safe speed of 60km per hour and blamed the
accident on the trailer that he alleged uncoupled from the horse.
He admitted that he held a class two driver's licence. He
did not have a class one driver's licence to drive the minibus in question.
The court a quo made a finding that the appellant's
witnesses were not credible because of contradictions in their versions of what
they said happened. The contradictions related to the fact that Cedon Moyo said
the minibus collided with the trailer while Liah Mugonapanja did not mention
any collision. The court also found that their evidence of the trailer having
become stationary in front of the minibus was contrary to the evidence of Elina
Ruvengo and the first respondent who said the trailer was in motion. It was
also put to Liah Mugonapanja, in cross examination by the respondent's legal
practitioner that a statement by the driver of the vehicle with a Malawian
registration number plate, which was pulling the trailer, was to the effect
that the trailer was moving slowly.
Although the court a quo found the defendant and his
witness credible, it clearly misdirected itself on the evidence on the basis of
which it made the assessment. The learned judge summarised the evidence of Elina
Ruvengo as follows:
“She first noticed the truck about a kilometre before the
scene of the accident. There were no reflectors on the trailer but it visible
(sic). The driver was travelling at a slow speed or average speed. The accident
was caused by a pickup truck which was travelling in front of the bus. The
driver of the bus tried to overtake the truck pulling the trailer and at that
moment, the trailer unhooked from the truck and the trailer encroached onto the
side of the minibus. When this happened the minibus was about 20 metres from
the trailer. The trailer was moving backwards towards the minibus. The driver
moved from left to right and the trailer followed him. She told the court that
the driver braked and tried to avoid the trailer. The passengers screamed when
the driver applied brakes and that it is at this moment that the minibus
collided with the trailer and the bus fell on its right side and began to slide
on the tarmac. The trailer remained in the middle of the road. After the
accident, the driver of the truck parked his vehicle and came to where the
minibus was. The witness was consistent in her story and gave a clear and
straight forward story. She maintained, under cross-examination, that the cause
of the accident was the trailer that disengaged from the truck and collided
with the minibus.”
It is clear that the events, as described by the learned
judge, relating to the behaviour of the trailer just before the collision of
the minibus is not supported by the evidence of Elina Ruvengo. There is nowhere
in her evidence that mention is made of the “trailer moving backwards towards
the minibus” and the driver moving from left to right with the trailer
following him.
In respect of the first respondent, the learned judge said:
“The driver did not see the other vehicle or trailer at the
last moment but had been following the other vehicle and seeing it. I am
satisfied that the defendant kept a proper lookout. He insisted that when he
was faced with an accident, he swerved to the right in order to avoid the
accident and applied brakes to control the vehicle. That, in my view, shows
that the driver acted reasonably to avoid an accident when one seemed
imminent.”
After referring to the case of S v Mauwa 1990 (1)
ZLR 235 (S), on the test of a reaction by a reasonable driver faced with
an emergency, the learned judge said:
“The first defendant was placed into danger by the wrongful
act of the Malawian driver ahead of him or the disengaging of the trailer from
the truck. Looking at the reaction and conduct of the first defendant, it is
clear that what he did in response to the accident that was imminent is
something which a reasonable person ought to have done. He applied his brakes
and swerved to the right in order to avoid the accident. I am satisfied that the first defendant
exercised such care as was expected of him when an accident seemed imminent. He
took evasive action by swerving to the right. The evidence of the plaintiff's
witnesses does not support a finding of negligence on the grounds relied upon.”
The finding by the learned judge, that the first respondent
swerved to the right to avoid the collision, is clearly not supported by his
evidence. He never said he swerved to the right. The evidence was that he held
onto the steering wheel, with his foot on the brakes, until the rear part of
the trailer hit the left rear side of his vehicle causing it to overturn.
It was therefore on the evidence adduced by the witness
that the learned judge made a wrong finding on the credibility of the witnesses.
The court is at large.
What is clear from the evidence is that the first
respondent was driving his motor vehicle following the motor vehicle that was
pulling the trailer. The evidence also shows that he came up to the trailer,
whether it was stationary or moving slowly, without having had enough time to
ensure that the two vehicles continued to drive on safely. The evidence of Liah
Mugonapanja and Elina Ruvengo was to the effect that people screamed before the
collision. Elina Ruvengo's evidence was, at first, that there were screams
followed by the braking, and the attempt to overtake immediately and then the
collision. It was only after being asked a leading question by the first
respondent's legal practitioner that she changed the sequence of the events to
say that the braking came first followed by the screaming, the attempt to
overtake and then the collision.
The evidence of the screaming coming first supports the
testimony by Liah Mugonapanja to the effect that she alerted the first
respondent to the presence of the trailer in front of them. That evidence, of
the first respondent having been driving without keeping a proper lookout of
what was happening in front of him is supported by Cedon Moyo who said the
first respondent panicked, suggesting that he had momentarily fallen asleep.
All the witnesses who gave evidence of the trailer and of the collision show
that the minibus hit the trailer. That evidence is from both Cedon Moyo and Elina
Ruvengo. The evidence of Cedon Moyo supports that of Liah Mugonapanja to the
effect that the first respondent executed a swerve to the right before
colliding with the rear right part of the trailer. Whilst Liah Mugonapanja's
evidence does not make reference to a collision it clearly refers to a swerve
to the right which was not completed because the motor vehicle overturned.
The incomplete swerve to the right which, Liah Mugonapanja,
refers to was clearly a result of the collision between the minibus and the
rear right side of the trailer. Even Elina Ruvengo said that when the minibus
hit the trailer the latter had moved to occupy a portion of the road in front
of the minibus. The evidence of the first respondent himself is to the effect
that the minibus hit the trailer. He said that the impact between the right rear
side of the trailer and the left front side of the minibus was from the front
going backwards towards the left front door. That, clearly, is not descriptive
of an impact caused by a trailer moving towards the minibus which had already
started the overtaking manoeuvre. If the minibus was hit by the trailer, while
it already had a portion of its left side parallel to the right rear side of
the trailer then the direction of the force of the impact would have been from
the door to the front.
The evidence that the trailer was hit by the minibus while
it was in front of it is supported by the location of the damages to the
minibus. The evidence shows that the damage was concentrated on the front part
of the minibus. The story of the minibus having been hit by the trailer whilst
in the process of overtaking it is a fabrication. The respondents did not
mention that the minibus was overtaking the trailer at the time it collided
with it in their plea. They knew that the appellant was alleging that the
minibus had hit the rear part of the trailer as a result of the negligent
driving of the first respondent as particularised. Instead of alleging that the
collision took place when the minibus was overtaking the trailer they instead
alleged that the minibus was hit by a passing motor vehicle. There was no
mention at all of overtaking.
The first respondent paid the driver of the motor vehicle
that was pulling the trailer US$1,500= as compensation for the damage caused to
the trailer.
He could not have paid that amount if he believed that the
trailer was the cause of the accident….,.
It is clear from the evidence that the appellant succeeded
in establishing, on a balance of probability, that the damages she suffered
were a result of the negligent driving by the first respondent in the course
and within the scope of his employment with the second respondent.
In Hirsch
Appliance Special v Shield Security Natal (Pty) Ltd 1992 (2) SA 643 (D)…,
it is stated that:
”In general, the law does not hold one liable for the
wrongs of another but sometimes it does. So, for example, it holds one
vicariously liable when one's servant commits a wrong in the course and scope
of his employment. That this is so today is well settled.”
The court a quo ought, therefore, to have awarded the
appellant the damages she claimed.
The appeal is allowed with costs. The judgment of the court
a quo is set aside and substituted with the following:
“1. The claim is granted with costs.
2. The defendants shall pay the plaintiff the
sum of US$36,475= with interest thereon at the prescribed rate from 12 February
2010, the one paying the other to be absolved.”
