At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

The requirements for a claim under the lex aquilia were aptly captured thus:

"It is now well-established in our law that the plaintiff in an Aquilian action for patrimonial loss must establish that:-

(i) The defendant committed a wrongful act;

(ii) The plaintiff suffered patrimonial loss, viz actual loss capable of pecuniary assessment;

(iii) The defendant's act caused the loss suffered by the plaintiff and that the harm occasioned was not too remote from the act complained of;

On 22 August 2007 on the Tafara Highway in Mabvuku, Harare, the six (6) year old daughter of the plaintiff was hit by a bus driven by the second defendant, which belonged to the first defendant, during the scope and course of his employment. The plaintiff issued summons on 6 June 2008, on the girl's behalf, claiming special damages and general damages denominated in local currency and costs of suit.

The plaintiff seeks special damages in the sum of US$530= and general damages in the sum of US$10,000=.

The defendants denied both liability and the claim for damages.

The plaintiff testified and called the evidence of his wife and the girl and Dr. Arnold Tawanda Vhumisai. In addition he produced three documentary exhibits. The second defendant was the sole witness for the defendants.

At the pre-trial conference that was held on 24 June 2009, the following two issues were referred to trial:

1. Whether or not the second defendant was negligent.

2. If the second defendant was negligent, what was the quantum of damages suffered by the plaintiff as a result of the accident?

The plaintiff's evidence established that the girl was born on 21 January 2001. On the day of the accident she was doing Grade 1 at Simudzai Primary School in Mabvuku. It was during the school holidays. Her mother, Florence Chidakwa, left her at home in the company of her twelve (12) year old sister while she proceeded to her market stall situated in the locality. The elder sister left the girl at home while she went to the nearby shops to purchase a packet of maputi. Unbeknown to the elder sister the girl followed her. She saw the bus driven by the second defendant stationary. The girl proceeded to cross the road at this busy spot close to Kamunhu shops. She was hit by the bus near a road hump and fell underneath it. Her left arm was crushed.

She was retrieved by an unnamed man from underneath the bus.

She was crying in pain. Her mother arrived at the scene and took her to the local clinic from where she took her to Parirenyatwa Hospital where she was admitted form 22 August until her release on 8 November 2008.

The second defendant…, evidence for the defendants.

He was driving the bus which belonged to the first defendant in the course of his employment. He had been driving buses along that route for a period of ten (10) years before the day in question. He was familiar with the crowded nature of the area around Kamunhu Shops. The bus was in perfect condition and the weather was sunny and his visibility clear. As he approached the shops, he reduced the speed of his bus to about 10 kilometers per hour because he was approaching a road hump and some passengers intended to alight at Kamunhu Bus Stop. Before he reached the hump he saw the girl some three (3) meters away from the bus. She then dashed “like a rabbit” into the line of travel of his bus. He immediately applied brakes. The child was hit by the front part of the bus and fell underneath it. Her left arm was crushed. He believed that he acted swiftly to avert mortal danger to the girl.

He stated, under cross examination, that he was never convicted nor sentenced of the offence of negligent driving at Harare Magistrates Court.

I am satisfied that the plaintiff discharged the onus on him to show on a balance of probabilities that the second defendant drove his bus negligently on the day in question.

He did not notice the young girl until she was three (3) meters away, yet, by his own admission, he was at a busy intersection. He did not disclose why he failed to see her before she was just 3 meters away. It seems to me that his failure to see her earlier demonstrated that he was not keeping a proper look out. The fact that he only braked after the child had dashed like a rabbit in front of him also showed that he had not prepared himself for the possibility that the child would impulsively cross the road in the manner she did. He thus failed to keep his vehicle under control in that had he only reacted when it was too late. A prudent driver driving past a crowded area would drive slowly with his foot on the brakes in anticipation that he may be required by the exigencies of the situation to stop.  

I answer the first issue referred to trial in the plaintiff's favour.

The plaintiff is a self employed male adult. The first defendant is employed by the second defendant as a Marketing Assistant. The second defendant is a company duly incorporated with limited liability according to the laws of Zimbabwe.

At all material times, the plaintiff was the owner of a Nissan Sunny FB15 motor vehicle registration no. AAP 1693. The first defendant was authorized to drive the second defendant's motor vehicle, viz; Nissan Hardbody registration no. AAG 1002.

On 28 July 2007, and at the intersection of Julius Nyerere Way and Nkwame Nkrumah Avenue, around 0300hours, a collision occurred between the plaintiff's aforesaid motor vehicle and the second defendant's motor vehicle then and there driven by the first defendant.

The two motor vehicles sustained damages. The plaintiff's motor vehicle was damaged beyond economical repair.

On 15 October 2007, the plaintiff issued summons against the two defendants claiming the replacement value of the Nissan Sunny FB15 as at the time of judgment and interest thereon at the prescribed rate from the date of judgment to the date of final payment. At the time of issuance of the summons that replacement value was $7 billion. The plaintiff alleged that the collision was caused solely as a result of the negligent driving of the first defendant. The particulars of negligence alleged were that:-

1. She failed to keep a proper look out.

2. She failed to give precedence to the plaintiff's motor vehicle.

3. She failed to apply her brakes timeously or at all.

4. She entered the main road at a time when it was unsafe to do so.

The first defendant admitted that indeed a collision occurred on the night in question between the aforementioned motor vehicles. She admitted that she was driving the second defendant's motor vehicle but this was not in the course of her employment. She denied that she was negligent in any way. She, on the other hand, contended that the plaintiff was the sole cause of the accident in that:-

1. He was over-speeding in the circumstances.

2. He drove without due care and attention.

3. He failed to take precautionary measures once he noticed the first defendant's vehicle emerging from the round about.

Alternatively to the above, that plaintiff contributed significantly to the occurrence of the collision by being negligent in the manner or manners averred above.

After the closure of pleadings, the plaintiff withdrew his claim against the second defendant.

The issues for determination as between the plaintiff and the first defendant were identified as:-

1. Whether or not the first defendant was the sole cause of the accident.

2. If so, the particulars thereof.

3. Whether or not the plaintiff contributed towards the collision.

4. If so, the extent thereof.

5. What is the quantum of damages suffered by the plaintiff?

The plaintiff's case was testified to by the plaintiff and Mr Benjamin Matambanadzo. The defendant gave evidence and called no other witness.

From the evidence adduced in court it is common cause that on the night in question a collision took place as alleged. The plaintiff was driving along Julius Nyerere Way from north to south whilst the first defendant was driving along Nkwame Nkrumah Avenue from west to east. The collision occurred in the middle lane of the south bound lanes along Julius Nyerere Way.

The plaintiff gave evidence to the effect that on the night in question he was driving down Julius Nyerere Way when, as he approached its intersection with Nkwame Nkrumah Avenue, he suddenly saw the first defendant's motor vehicle in front of him; i.e. driving across his path. The motor vehicle was so close that despite applying brakes he could not avoid hitting into it.

At this intersection there is a small round-about on Nkwame Nkrumah Avenue which does not encroach onto Julius Nyerere Way and the first defendant was supposed to give way to traffic on Julius Nyerere Way. The first defendant did not give way hence the collision. After the collision he approached the first defendant and asked her what had happened. The first defendant's response was to the effect that she was not aware that there was an oncoming motor vehicle. It was his evidence that the first defendant was negligent in failing to give way as was expected of her at the intersection in question….,.

Under cross examination, the plaintiff maintained his stance. He denied that he was negligent in any way. As far as he was concerned, the first defendant entered the intersection without having ascertained that it was safe to do so….,.

In my view, the plaintiff gave his evidence well….,.

The first defendant gave evidence to the effect that on the night in question she was driving along Nkwame Nkrumah Avenue due east. On approaching the intersection of Julius Nyerere Way and Nkwame Nkrumah Avenue she checked for traffic on her right hand side and there was none. She then proceeded to cross the three north bound lanes of Julius Nyerere Way and got to a small round about. Before crossing the south bound lanes she checked on her left hand side and observed that there was a motor vehicle coming down. She estimated that the motor vehicle was about 100 metres away. As she was crossing the lanes she checked on her left again and saw that that the motor vehicle was near her. At that time she was in the middle lane. Her vehicle was there and then hit on the loading tray as she was in that lane. After the impact her motor vehicle swerved and faced the direction plaintiff had come. It was her evidence that, in her opinion, both the plaintiff and herself were equally to blame for the accident. The plaintiff's blame was that he was over speeding as evident from the swerving of her motor vehicle on impact.

A careful analysis of the evidence adduced in court shows that the defendant's case is fraught with inconsistencies.

In paragraph 3 of her plea, the defendant alluded to the fact that once she had crossed the three north bound lanes along Julius Nyerere Way and got to an island/roundabout she could not have stopped in the middle of the round-about and so she proceeded. She also said she proceeded after noticing that the plaintiff's motor vehicle was a safe distance away. Further on, she said that there was no obligation on her to give way once she was in the round about.

It is unclear whether she proceeded to cross Julius Nyerere Way because she was already in the roundabout or because she actually observed that the plaintiff's motor vehicle was far away and she could cross safely. In fact, by saying that she could not have stopped once she was in the round-about and that she was not obliged to give way to south bound traffic on Julius Nyerere Way the defendant was impliedly admitting that she never gave way but just drove through without ascertaining that it was safe to do so. She drove as if she had the right of way as is ordinarily the case at a roundabout-controlled intersection.

In her evidence in court, the defendant seemed confused regarding the situation with the small round about at this intersection. Whilst initially she made effort to show that the plaintiff should have given way since she was already in the roundabout, under cross examination, she seemed to buckle down when she admitted that to her knowledge she had never seen motor vehicles driving along Julius Nyerere Way giving way to motor vehicles crossing along Nkwame Nkrumah Avenue. If anything, motor vehicles in Nkwame Nkrumah Avenue give way to motor vehicles traveling along Julius Nyerere Way.

In her plea, the defendant had said that the plaintiff was the sole cause of the accident. In her evidence in court she did not maintain that. She, instead, said that they were both equally to blame. Clearly, the defendant was unsure of herself.

In her evidence in chief, and under cross-examination, she admitted that she paid an admission of guilty fine after admitting to driving without due care and attention.

When quizzed why she paid the fine, the defendant initially said she did so as she was in shock. She later admitted that whereas the accident occurred on 28 July 2007 she went to the police to pay the fine several days after the accident. She could not explain how the shock continued to affect her when she had had several days to compose herself before paying the fine.

Equally, exhibit 2 is an insurance report. On page 2 thereof the defendant's version of how the accident occurred is recorded. Though the defendant said she is not the one who wrote it, she did not deny that that information came from her. In that report she stated that:

“I was driving along Nkwame Nkrumah at the intersection with Julius Nyerere at a round about when I misjudged the speed of a Nissan Sunny Reg. No. AAP 1693 which appeared to be a distance only to realize that it was close thereby resulting in the Nissan Sunny hitting my left side of the loading tray and partly front.”

Though denying the handwriting, she admitted appending her signature to that statement as her statement.

When she was asked, further, why she gave out such a version her response was to the effect that she did it because she wanted to speed finalization of the matter and for the insurance company to pay Tendai Mazanhi.

If, as she said in her plea, the plaintiff was the sole cause, or, as she now said in her viva voce evidence, the plaintiff and herself contributed equally; why would she want the plaintiff to be paid off speedily by the insurance company?

In any case, it was not just because she wanted the insurance company to quickly pay off the plaintiff, but, as she stated in her evidence and under cross examination, she wanted to avoid being charged with the more serious offence of negligent driving. Such a charge was not preferred against her because of the offer made by her employer to pay the plaintiff for the damage to his motor vehicle. The defendant clearly admitted that it was because of these negotiations that she was not charged with negligent driving.

The defendant also testified that as at the time of the trial, the plaintiff had been paid $5 million by her employer's insurance company and a second payment of $7 billion was made in April 2008 by herself and her employer towards the plaintiff's claim.

When asked why they paid the $7 billion she said it was because they had not been given a claim exceeding $7 billion. She was further asked that now that a claim of more than $7 billion was made what was her stance to which she said “I say that the motor vehicle was paid for.”

I did not hear the defendant to say that the payment was made on a without prejudice basis. It was clearly made because the defendant accepted liability. She just could not be bold enough to admit so in her pleadings and in court.

On the question of liability for the accident, I find that the defendant was the sole cause of the accident. She clearly did not keep a proper lookout for other motorists, she did not give way to traffic on the main road as was required of her hence entering the main road when it was not safe to do so. As per her own words she “misjudged the speed of plaintiff's motor vehicle.” The defendant was negligent in those circumstances.

This matter involves a motor vehicle traffic accident that took place between a white diesel-powered four tonne 1983 Mitsubishi Canter truck..., 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 kilometre 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 thirty days of judgment. In the alternative, the first defendant sought the delivery of a replacement tractor of an equivalent value and condition within thirty 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.

It seems to me that the issues for determination can be reduced to four. These are:

(a) Who caused the accident?

(b) What was the contributory negligence between the parties?

(c) What is the measure of damages due to each party, if any? and

The first issue for determination is; 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 book..., 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 Vandirayi 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. 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 Vandirayi Tevera saw it, he reduced his speed from 60km/hr to 30km/hr.

He remained in his lane of travel.

He had passed the trailer when the tractor suddenly turned right into his lane of travel. Vandirayi Tevera swerved to the right into the lane of oncoming 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 Vandirayi Tevera, and the second defendant were ferried to hospital.

He blamed the tractor driver for causing the accident by travelling 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.

Under cross-examination, he maintained that the tractor was travelling off the road. He was shown exhibits 1 and 2. The two photographs of the place where the accident occurred. Counsel 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 Vandirayi 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.

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 hospitalised 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 exhibit 4, a copy of the statement he gave to the police. It is an extract from page 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 right 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 me, the one which was then overtaking me.”

Under cross-examination, he stated that he was travelling 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 oncoming traffic, just past the turn off near the point marked with an X on exhibit 1.

Daniel Moolman, the Managing Director of the first defendant, 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 Size Tiba and the second defendant, who were present at the scene of the accident.

The second defendant failed to demonstrate that he was licenced 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, Daniel Moolman, never saw the permit. He was only aware that he used to drive a tractor for a former employer. The employer was not called to confirm that he 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, section 31(3) of the Civil Evidence Act [Chapter 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...,. 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 section 31(3) of the Civil Evidence Act [Chapter 8:01] against him.

I did not believe the second defendant's version of how the collision happened.

Daniel 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 Size 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 was satisfied 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 utilised 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 oncoming 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 oncoming 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 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.

On 6 September 2008, at the 283km peg along the Harare-Chirundu road, an ERF vehicle, registration number 811-031E, driven by the first defendant during the course and scope of his employment with the second defendant collided with the plaintiff's vehicle, a Freightliner horse registration number AAZ9473 and trailer registration number ABB0565. Arising from that collision, the plaintiff issued summons on 18 June 2009 and sought the necessary costs of repairs to its horse in the sum of US$9,751=22, interest thereon and costs. The action is based on the purported negligence of the first defendant.

Seven particulars of negligence are listed in the declaration in these terms:

1. He encroached into the plaintiff's lane of travel resulting in the collision with the plaintiff's horse and trailer;

2. He was overtaking a motor vehicle in front of oncoming traffic and against prohibition road markings;

3. He failed to keep a proper look out;

4. He failed to take evasive action when the accident seemed imminent;

5. He drove his vehicle in a negligent manner resulting in a collision with the plaintiff's vehicle which was in its correct lane on a marked road;

6. He drove at a speed which was unsafe and excessive in the circumstances; and

7. He drove recklessly or without due care and attention.

The defendants admitted that the collision took place.

They, however, disputed both liability and the measure of damages. On liability, they averred that the plaintiff's driver was the one who drove its vehicle negligently in that he was driving downhill at a high and unsafe speed and failed to keep a proper look out.

At the pre-trial conference held on 24 March 2010, three issues were referred to trial. These were:

(a) Whether the accident was caused by the first defendant's negligence or the plaintiff's driver's negligence?;

(b) Whether the defendants are liable; and

(c) What is the quantum of such damages?

In order to answer these questions, the plaintiff called the evidence of two witnesses and produced three documentary exhibits while the defendants called two witnesses and produced one documentary exhibit.

(a) Who between the two drivers was negligent?

Standreck Tavirimirwa, who was driving the plaintiff's vehicle when the collision took place, testified to the following effect. He was driving a horse and drawing a 30 tonne trailer laden with sugar down the Makuti Hills at a speed of 45km/hr in broad daylight at around 1pm. On his extreme left were steep and treacherous gorges. He was finishing negotiating a blind sharp curve when he saw, some 20 metres away, on the straight stretch of the road ahead, two oncoming trucks. The truck driven by the first defendant was in Standreck Tavirimirwa's lane and was overtaking the other truck, which belonged to Sabot, against double continuous prohibition lines marked in the centre of the road. He reduced speed and moved to his extreme left pulling off the road to avoid the truck driven by the first defendant.

The two vehicles side swiped.

The right front axle of his horse hit the diff axle and the all-trailer axle of the truck driven by the first defendant. The damage to his horse was extensive. The whole front suspension, that is, the axle, springs, and one of the tyres burst while the other was damaged; the bonnet, radiator and the right side tank were damaged….,.

He compiled exhibit 1, the J & J Transport Driver Accident Report Form two days later in which he wrote out how the accident happened and drew a sketch plan of the scene of the accident.

He was cross examined. He gave the following responses.

The speed limit on the stretch of road was 60km/hr. The Sabot truck was not stationary. The witness avoided a head on collision. The first defendant's horse was in the witness' lane of travel. The right front tyres and right diff tyres of the defendants' horse were damaged.

The defendants relied on the testimony of the first defendant on the manner of the collision.

He stated that as he approached the scene of the collision he stopped some 10 metres behind a 22 metre long stationary Sabot truck. The left side wheels of the Sabot truck were off the road while the right side wheels were on the road in his lane of travel. He stopped for two minutes in order to check if it was safe for him to proceed as he was on a steep incline and 50 to 60 metres ahead the road curved sharply to his right. Two small vehicles sped past both his and the Sabot truck. He followed the two small vehicles and was almost overtaking the stationary truck when he saw the plaintiff's truck some 40 metres away emerge from the sharp curve coming towards him in its correct lane of travel. He moved from its path but it struck the right rear wheels of his horse and the back wheels of his trailer. He estimated that the plaintiff's truck was going at 70km/hr while he was doing 10km/hr. He attributed the collision to the speed of the plaintiff's driver, which precluded him from stopping to avert the accident. The tyres of his truck were damaged and the springs were broken. He admitted that he overtook against the prohibition markings on the road. He conceded that he was negligent but attributed contributory negligence to the plaintiff's driver for travelling at an excessive speed and failing to stop when an accident seemed imminent. He also conceded that he had been charged with negligent driving arising from the collision but the trial was yet to commence.

He was cross-examined on his version that the Sabot truck was stationary.

He stated that the driver of the Sabot truck enquired whether anyone had been injured. When the two colliding drivers returned with the police an hour later the Sabot truck was no longer at the scene. He maintained that the plaintiff's driver was negligent in that he failed to stop. He conceded that the other driver reduced his speed by applying his brakes. He denied that he was negligent in any of the respects outlined by the plaintiff.

Counsel for the defendants submitted that the first defendant was faced with a sudden emergency. The doctrine of sudden emergency was commented upon in Thornton & Anor v Fismer 1928 AD 398…, in these words-

“A man who, by another's want of care, finds himself in a position of imminent danger, cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger.”

These sentiments were quoted with approval by ELS J in Ntsala & Ors  v Mutual & Federal Insurance Co. Ltd 1996 (2) SA 184 (T)…,. At 192D, the LEARNED JUDGE went on to state that -

“A party to an action can only rely on the doctrine of sudden emergency if and when the sudden emergency in which he finds himself is not of his own doing. If his actions or neglect are the reason or cause of the sudden emergency, he can, for that reason, also be found to be negligent.”

The defence of sudden emergency does not avail the defendants in the present matter as it was foolhardy of the first defendant to overtake the Sabot truck on an incline; against the prohibition markings on the road; and 20 metres from a blind and sharp curve.

I determine the first issue referred to trial in the plaintiff's favour.

The first plaintiffs claim, as amended, is for the replacement cost of his motor vehicle, being a 1996 model Mitsubishi Canter truck imported from Japan in the amount of USD7,000= and ZAR58,043=99 for freight and duty charges.

Both plaintiffs also claim interest on the stated capital sums at 30% per annum calculated from 20 June 2007, the date of the accident, to date of payment in full.

Luke Chigwida the first plaintiff gave evidence...,.

He runs a company called Swedde (Pvt) Ltd. He bought and imported the Mitsubishi Canter truck from Japan. After clearing the vehicle at the border and paying all dues..., he took possession of the vehicle. He then asked his brother, the now deceased Farai Emmanuel Chigwida, to drive it while he led the way driving another vehicle, on their way from Beitbridge Border Post. As they progressed on their journey he drove past a Mainline, tanker, presumably the third defendant's vehicle. Then after some time he realised that he could no longer see his brother following behind him. He stopped in Masvingo waiting for his brother to arrive. As there was a long delay he flagged down a bus and asked if they had seen a Mitsubishi Canter truck. On receiving a report from the bus driver, he made a u-turn and drove to the mortuary. He then went to the scene of the accident in the company of some police details. He incurred towing costs in the sum of Z$34 million. The Canter truck had to be towed as it could no longer be driven due to the extensive damage that it had sustained.

On the date in question, the late Emmanuel Chigwida was driving the first plaintiff's Mitsubishi Canter truck from Beitbridge, in the direction of Masvingo. He was following behind the first defendant's truck which was also going in the same direction. Sometime between 6.30 pm and 7.00 pm, a sack of cotton lint dropped from the third defendant's truck which was going in the opposite direction. The sack fell onto the driver's side of the first plaintiff's motor vehicle. This happened soon after the third defendant's truck had by-passed the first defendant's truck. The first plaintiff's vehicle veered from its lane of travel but the driver, the late Emmanuel Chigwida, applied brakes and it came to a halt. By the time well-wishers, who arrived at the scene, forced open the driver's door, the driver, Emmanuel, was already dead.

It is common cause that the accident was a result of the side-swiping between the first defendant's and the third defendant's vehicles' loads as the vehicles by-passed each other going in opposite directions. The first defendant's vehicle was carrying a load of cotton cake bags or sacks which were about one and a half metres high from the floor of the trailer. (The question whether it was cotton lint or cotton cake {both of which are products of cotton} that was in the bags or sacks remained unresolved throughout the trial.) The third defendant's vehicle, on the other hand, was carrying an excavator whose width, at some levels, overlapped the sides of the trailer on which it was loaded. It is common cause that the protruding part of the excavator came into contact with the load of bags of cotton cake resulting in the ripping open of the tarpaulin that covered the bags or sacks and cutting through..., the straps and belts that held the bags together.

The plaintiffs contend that the accident was caused by the negligence of all the defendants.

They contend that the second defendant was driving during the course and within the scope of his employment with the first defendant, and that they were both negligent in that they failed to ensure that the load on their vehicle was safely secured before embarking on the trip as well as during the course of the trip. The plaintiffs also contend that the third and fourth defendants were negligent in that their vehicle which was carrying an excavator encroached into the lane of travel of vehicles travelling in the opposite direction resulting in the side swipe with the first and second defendants' vehicle thereby off-balancing the load of cotton cake bags one of which then fell on to the first plaintiff's vehicle. They contend that the third defendant's driver was negligent in encroaching into the other vehicles' lane and that as the vehicle was carrying an abnormal load it should not have been travelling at that time of the day particularly as it had no escort, beacon lights or flags. They further contend that the fourth defendant was driving during the course and within the scope of his employment with the third defendant and that he was also driving while under the influence of alcohol.

Both sets of..., defendants have denied liability with each blaming the other for the accident.

The following issues were referred to trial:

“1. Whether the accident was caused by the negligence of the first and second defendants, or by the negligence of the third and fourth defendants, or by the negligence of all or any of the parties. If all or any of the parties contributed to the accident, in what proportions did each contribute and would be liable? (sic).

2. What is the quantum of damages suffered by each of the plaintiffs?”

The plaintiffs' first witness was Lovemore Mukura.

He was seated on the front passenger seat of the first plaintiff's Canter truck, which was being driven by Emmanuel Chigwida, now deceased. The vehicle was travelling along the Beitbridge/Masvingo road towards Masvingo, the final destination being Harare. In front of them, and travelling in the same direction, was a truck carrying what he thought was a caterpillar. (It is now common cause that it was an excavator and that it was loaded on the third defendant's truck.) He said that the driver of the Canter truck, the late Emmanuel Chigwida, tried, at various stages, to overtake the third defendant's truck but failed. One of the reasons why he failed to overtake the third defendant's truck was that the third defendant's truck was long and the driver seemed not to anticipate that he was going to be overtaken. At another stage, he said the failure to overtake was because the driver in front would not allow the driver of the Canter truck to overtake him as he would increase his speed making it impossible for the late Emmanuel Chigwida to overtake and, thus, forcing him to remain behind hoping for another opportunity when he might successfully overtake. The witness said that he did not check to see if the excavator was fully accommodated inside the trailer of the truck in front of them. He, however, described the excavator as a big load and also said that it was of considerable height. He said that the Canter truck had been travelling at between 80 and 90 km per hour before they caught up with the third defendant's truck. They drove behind it for about fifteen (15) to twenty (20) minutes during which period the driver of the Canter truck had reduced his speed to between 75 and 80 kilometres per hour, the same speed that the third defendant's truck appeared to have been travelling at. All of a sudden, he saw a sack landing on the windscreen of the Canter truck on the driver's side resulting in the driver being slung onto the steering wheel. The witness was struck on the right lower chest and was also injured on the right cheek and on the back of his head by the shattering windscreen. When asked where the sack came from, the witness said that it fell off a truck that was travelling from the opposite direction. When asked why, or how, it fell he said that he did not know what actually happened between the two trucks. He said that after the sack fell on their truck, the Canter truck left its lane and went off the road. It came to a halt after the driver applied the brakes. The truck with the excavator did not stop. After the accident he observed cotton cake sacks strewn on the road. Whilst being cross-examined by the third and fourth defendants' legal practitioner, the witness said that as they travelled behind the third and fourth defendants' truck he observed that the trailer in which the excavator was was not stable as it was swerving and thus making it difficult for the driver of the Canter truck to overtake it. He also said that when the accident occurred the Canter truck was some forty metres behind the truck with the excavator. He did not see how or why the sacks fell onto the road; he only saw them on the ground. However, the Canter truck was in motion at the same time that the sack that eventually fell on it was also in motion.

The second defendant gave evidence on behalf of the first and second defendants.

He is employed by the first defendant and was driving its truck on 20 June 2007. He has twelve years experience as a long distance truck driver. He was carrying cotton cake bags from Harare to Johannesburg. From the trailer his load was one and a half metres high. It was high enough to have had contact with load of the third defendant's vehicle which was going in the opposite direction. The witness said that as he was entering Masvingo he realised that his load had shifted to the left. He then drove to a place where lorries are usually parked. He looked for young men who usually roam the place looking for odd jobs. When asked as to how he had picked those who then assisted him he said that he had known them for some time and knew them to be experienced in that work. They assisted him to re-secure the load. Before leaving his port in Harare the vehicle had been loaded by young men engaged as casual workers. According to company policy he must check his load after every 300 kilometres - and that is what prompted him to check his load as he was entering Masvingo which is some 291 kilometres from Harare. The witness said that he was carrying 600 bags. They were covered by tarpaulin and secured by twenty one belts which tightened them. After re-securing the load he left Masvingo at 5.45pm, and the accident occurred about 7.20pm. As he approached the third defendant's vehicle, which was travelling in the opposite direction, he dipped his lights and switched on his right indicator to show the on-coming driver what space was occupied by his vehicle. He did not realise that the third defendant's vehicle was carrying an abnormal load. He did not see the cloth said to have been at the front of the vehicle on which the words “abnormal load” were written. As the vehicles passed each other, going in different directions, he heard two separate and distinct noises. His vehicle swerved off the road and he then stopped it. The first noise was from the impact of the loads of the two vehicles. The second noise was from the impact of the cotton bags on the deceased's vehicle. He thought that the now deceased's vehicle must have been travelling too close to the third defendant's vehicle and was travelling at an excessive speed otherwise he would have found the cotton bags already on the ground. The witness said that he was then approached by a witness from the deceased's vehicle who made a report to him and indicated the deceased's vehicle to him. The witness got to the deceased's vehicle and removed the driver from the vehicle. He was already dead. The witness also removed two passengers who were seated in front, a man and a woman. The witness went back to check on his truck and realised that the tarpaulin and the ropes had been cut through on the right side. He thought that it was possible that the fourth defendant may not have heard the sound of the impact of the two loads as the fourth defendant's load was very large. He believed that immediately before the accident his load was in a safe position as it had just been re-secured in Masvingo. The load was properly accommodated inside the trailer and was not overlapping the sides of the trailer. Furthermore, as a professional driver, he was checking his view mirrors every forty-five seconds. He was also switching the worklight on at intervals in order to check on the security of his load. On being cross-examined by the plaintiffs' legal practitioner the witness said, inter alia, that the load he was carrying was from Cottco and the young men who loaded the truck were employed by Cottco to do the job. The young men who re-secured the load in Masvingo were not employed by Cottco. The witness used to know them when they used to work for an organisation called CARE where they used to perform the same duties on a daily basis; however on this occasion they had since left employment with CARE. The witness was questioned also about his statement whilst he was giving evidence-in-chief that loads normally slant to the left and not to the right. He said that this is what he had grown to know from his observations during the years of experience that he had. He further stated that it is unusual for a load that would have shifted to the left to thereafter shift to the right. The witness said that if he had noticed as he approached the third defendant's truck that it was carrying an abnormal load he would have pulled off the road. He did not expect to meet an abnormal load vehicle at that time. He denied that he was not exercising due care and attention or that he failed to keep a proper look out. He said that if he had been driving without due care and attention there would probably have been a head-on collision or the horses of the two trucks would have collided. He said that the bags fell off because the tent, or tarpaulin, and the ropes had been ripped and cut through when the two loads came into contact. The witness said that he did not see the deceased's vehicle before the accident and conceded that his conclusions regarding how closely it was following the third defendant's vehicle were based on assumptions. He said that his conclusions were based on the fact that the bags fell and landed onto his vehicle and that one would have expected him to have run over the bags if he was not too close to the third defendant's vehicle and was not travelling too fast. The witness said that he had travelled some sixty-five kilometres from Masvingo when the accident happened. He denied that his constant checking of the view mirrors disturbed his concentration on keeping a proper look-out. On being cross-examined by the third and fourth defendants' legal practitioner the witness said that he did not believe that his load had already shifted to the right before the impact. He said that the impact caused his vehicle to go off the road. He said that the tarpaulin was torn at the height of some 40cm from the trailer, and that it was torn right across its whole length on the right side. He said that as the tent and ropes were ripped open and cut through, some bags of cotton cake were carried away by the abnormal load and some landed on the third defendant's vehicle. He said that as the third defendant's vehicle carried an abnormal load it did not leave sufficient room for the two trucks to pass each other safely. He also said that he did not see if the third defendant's truck encroached onto his lane of travel or it was in its own lane. All he heard was the impact on collision. He said that the third defendant's load overlapped the sides of the trailer but would not agree nor could he deny that it overlapped by fifteen centimetres. He also said that he could neither agree nor deny that such an overlap would be the same as that of a view mirror and would therefore not be a danger to other road users.

No other witness testified on behalf of the first and second defendants and their case was then closed.

The fourth defendant gave evidence on behalf of the third and the fourth defendants. He is employed by the third defendant as a driver, and has been so employed since November 1989. He has been driving heavy vehicles since 1976. On 20 June 2007 he was driving the third defendant's truck and on it was loaded an excavator which he was transporting from a harbour in Durban to a destination in Ndola in Zambia. On the way from Beitbridge to Masvingo he was involved in the accident that has given rise to this suit. When asked if he had seen the first defendant's truck coming from the opposite direction whilst it was still some distance away he said that he had. He was asked if he had noticed anything that was out of order on or about the first defendant's vehicle. His answer was -

“I did not see the slanting or position of the load because the road was straight. I did not see that the load was protruding. I did not see anything abnormal or if the load was in any way not properly positioned.”

The witness said that he travelled for some distance with the deceased's vehicle trailing behind his. He noticed the deceased's vehicle at Ngundu Halt and also at another place called Maringire. He said that he did not, at any stage, notice any indication of the deceased's intention to overtake him. The witness said that his load was not an abnormal load. An abnormal load protrudes out of the trailer significantly. The height of the load and the tonnage also determine whether a load is abnormal or not. He said that an excavator is constructed in such a way that the bottom part is wider than the top part and it is the bottom part which was on the trailer. Three quarters of the chain wheels were contained in the trailer with a protrusion of about ten to fifteen centimetres. It is thus the bottom part which was overlapping and not the top part. A load would be abnormal if the overlap would be such as to interfere with the other lane of travel for vehicles from the opposite direction. The witness said that his load was 3,8 to 4 metres high, and, to his knowledge, a load of five metres and above would be abnormal. A weight of thirty five tonnes and above on a 3-wheeled axle would also qualify to be labelled as an abnormal load. The witness also said that an abnormal load must be carried on a low bed trailer. When intending to carry an abnormal load, one must obtain a permit from the Ministry of Transport first. One is also allocated a route to use or follow. One must also have two vehicles to escort the abnormal load with one vehicle in front to alert on-coming traffic. Abnormally loaded vehicles are not allowed to travel between 6pm and 6am. When entering a town one is supposed to telephone the police who would then escort the abnormally loaded vehicle through the town in order to avoid accidents. In this instance no application was made for a permit to carry an abnormal load from Durban to Ndola as he was carrying a normal load. He said that all he had was what he called a “cross-border permit.” The police would not have allowed him to pass or proceed without that permit if he had been carrying an abnormal load. If carrying an abnormal load, one does not go to the weigh-bridge at the border. A different gate is used and the vehicle is parked in the clearance yard. On the day in question, he went through the weighbridge as he was not carrying an abnormal load. He produced the weigh bridge ticket. The witness said that he stopped some forty kilometres after Masvingo on his own accord as he needed food and refreshments. He was only alerted to the fact that he had been involved in an accident by the owner of the shop where he had parked. They then examined his vehicle using torches as it was dark and they observed some pieces of cotton cake on his trailer by the chain wheels. By the view mirror close to the driver's cabin were pieces of bags. The owner of the shop then called Masvingo Traffic Police and asked the witness to wait for them there. The police finally arrived at 3.30am and they drove back to Masvingo Central Police Station where he disengaged the horse from the trailer and drove back to Ngundu with three police details. The witness said that at the scene he saw bags of cotton cake on the right side of the road. A truck had hit against a rock. The first defendant's truck was parked off the road. On the first defendant's truck he noticed that just after the centre of the trailer the tent was ripped open. It looked like the vehicles had side swiped causing the bags to fall off. He said that the glass or windscreen of the driver's cabin on the excavator was not damaged. He believed that the bags must have been raked by the view mirror of the excavator as there is no other part of the vehicle or its load which could have come into contact with the bags. He said that they realised that the protruding bottom part of the excavator had not come into contact with the cotton cake bags. He also said that the horse of the first defendant's truck was not dented. He said that he also observed that the tearing of the tarpaulin was concentrated more on the area where the load was slanting. He did not see a tear running the whole length as stated by the second defendant. The load was slanting to the right. He denied being partly or wholly responsible for the accident. Under cross-examination by the plaintiffs' legal practitioner the witness said that as he observed the second defendant's truck approaching he saw that its load was the same height as his. He said he travelled at a maximum speed of 80km per hour reducing to lower speeds when the terrain or circumstances required that. He said the document that he had produced, the weigh-bridge ticket, showed three weights taken from the front axle, the diff, and the tri-axle trailer. He said that the total weight would then be the total of the three stated weights. He said that he does not know the width of his trailer but it was like any other tri-axle trailer. The witness was asked why the plaintiffs' witness, the police officer, was not challenged when he said that the top part of the excavator was protruding from the trailer. He said that he had not been given an opportunity to personally cross-examine the witness. He said that it was not true that there was a piece of red cloth stuck at the front of the horse of his truck. He said that there was a permanently stuck abnormal load sticker on the horse of the trailer. On the day in question he was using a truck with a low bed. The witness denied that he was negligent by failing to warn other road users of the load that he was carrying. He denied that he is being charged with culpable homicide and failing to stop after an accident as he has not been formally charged nor has he received documentation to that effect. Furthermore, the police had cleared him after the accident and had also given him a document to show to his employers indicating that he had been delayed at Masvingo Police. The witness was then cross-examined by the first and second defendants' legal practitioner. He said that..., although he had not seen that the first defendant's truck's load was slanting before the accident, he did not agree that the contact between the two loads or trailers caused the load to be in the slanting position that he saw it in after the accident. He said that if his trailer had side-swiped the first defendant's truck's trailer there would have been more extensive damage than what transpired. Tyres would have burst and the chains securing the excavator would probably have been severed, with a possibility of the excavator being thrown out of the trailer. He said that the first defendant's truck would then have probably veered off the road and the driver would have lost control. He maintained that the cause of the accident were the cotton cake bags which were slanting to the right and that the protrusion of his own load had no effect on other road users. He had travelled a long distance all the way from Durban for about one and half days and he had left in the evening. The protrusion of his load had not caused any problem then. The witness further said that he did not think it was the second defendant's fault that the load was slanting. As roads are bumpy and there are holes, that can result in loads shifting without there being any negligence on the part of the driver. He said that his own load did not shift as it was secured by chains. If it had slanted it would have fallen. He denied that he obstructed the second defendant preventing him from overtaking, and maintained that his vehicle occupied its correct lane only and did not protrude into the other lane for traffic from the opposite direction.  

The third and fourth defendants' cases were then closed.

The plaintiffs' claims are for delictual damages arising from the alleged negligence on the part of all the defendants. In Cape Town Municipality v Paine 1923 AD 207..., INNES CJ stated -

“It has repeatedly been laid down in this court that accountability for un-intentioned injury depends upon culpa - the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman law - the average prudent person. Every man has a right not to be injured in his person or property by the negligence of another; and that involves a duty on each to exercise due and reasonable care. The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.”

It is common cause that the first and second defendants' load of cotton cake or lint came into contact with the third and fourth defendants' vehicle or load (excavator). It is also common cause that although the loads of the two vehicles made contact, the horses of the two vehicles did not make contact when they passed each other as they proceeded in opposite directions. The police Investigating Officer said that the top part of the excavator was protruding outside the trailer and that he observed traces of cotton lint on the excavator. The third defendant, however, said that it was the excavator's view mirror which raked the cotton lint or cake bags and that there were traces of cotton lint or cake on it. Although this may appear to be a difference in their versions, the fact remains that a part of the excavator was protruding and that that part raked the cotton bags.

The second defendant said that as he drove he would constantly check on his load to make sure that it had not shifted as it is known that a load may shift whilst in transit due to the movement of the vehicle as well as the terrain on which the road passes. He also said that he noticed that his load had shifted before he got to Masvingo and that this necessitated him having the load re-secured in Masvingo before he proceeded further with his journey. The accident occurred after the stop-over in Masvingo and after he had travelled some 65km. He suspected that by the time of the accident his load may possibly have shifted again. That the fourth defendant's load may have shifted again by the time of the accident appears to be strongly supported by the fact that the re-securing of the load at Masvingo was done by people who were not professionals at the job. Furthermore, that the accident occurred only some 65km after he had left Masvingo. This ought to be viewed in light of the second defendant's evidence that his employer requires him to check on his load every 300km. That the load had shifted at the time of the impact also seems to be supported by the fact of the impact itself as it is highly unlikely that there would otherwise have been contact between the two vehicles.

The first and second defendants were thus negligent in not ensuring that the load was properly secured and would not cause danger to other road users. They were, therefore, negligent and thus cannot escape liability for the plaintiffs' claims.

It, however, appears to me that it could not only have been the shifting of the second defendant's load that led to the impact of the two loads. The protrusion of part of the fourth defendant's load, the excavator, appears to me to have also played a part in the occurrence of the impact between the loads. The fact that the two horses did not collide with or side-swipe each other suggests that the two drivers must have each been driving well within the confines of their respective lanes. I thus find the first and second defendants' contention that the third and fourth defendants' vehicle encroached into their vehicle's lane to be highly improbable. There would otherwise have been a collision or side-swiping of the horses and the fourth defendant would have become aware of the accident as it happened, or, at the very least, very soon thereafter....,. It was common cause that the third and fourth defendant's vehicle had no flashing beacon and no escort. The plaintiffs contend that as the third and fourth defendants' load was abnormal they needed to have taken the stated precautions. The third and fourth defendants disputed this contention. However, the police witness said that the horse had a sticker at the front on which were inscribed the words “Abnormal Load”. He also said that the excavator was about four to five metres in height. The fourth defendant however put it at four metres high. The police witness also said that the fourth defendant had an abnormal load permit. I have no reason to doubt the truth of his evidence. The evidence placed before the court tends to support the plaintiffs' contention that the third and fourth defendants load was an abnormal load which required compliance with the permit's restrictions on the times when movement on public roads is allowed as well as the other precautions that are meant to avoid danger to other road users. I am also persuaded by the plaintiffs' contention that even if the third and fourth defendants' load was not abnormal, the type of item carried as well as the size of it were such that they should have foreseen that it might cause danger to other road users and should have taken the necessary precautions which would include not travelling after 6.00pm, or, at least, after dark, and would also include flashing a beacon.

The type of load that the fourth defendant was carrying was, in my view, such that it not to have been transported on a public road after dark.

It is the plaintiffs' contention that whilst all the defendants are jointly and severally liable for the damages that they have sustained, the third and fourth defendants' blameworthiness is higher than that of the first and second defendants. The plaintiffs urged the court to find that an apportionment of 70% of the blame (for the accident) to the third and fourth defendants with the other 30% being apportioned to the first and second defendants would be reflective of the respective defendants' levels of blameworthiness.

In Portwood v Samvur 1970 (1) RLR 225...,; 1970 (4) SA 8 (RAD) BEADLE CJ stated -

“It is trite that, as a very general principle, before any act of negligence can be regarded as being responsible, even in part, for an injury, it must be shown that that act was a sine qua non of the accident causing the injury, and, unless it can be shown that the accident would not have happened but for that act, such act of negligence is not regarded as a sine qua non. (See McKERRON's Law of Delict, 6^th Edn pp117 and 272, and cases there cited.)...,. McKERRON goes so far as to say that there is only 'one exception' to this 'rule'. This exception is where the damage is brought about by two concurrent causes, each of which, operating alone, would have been sufficient to cause the damage (McKERRON, loc cit.., p.117). Instances of this exception are not difficult to imagine. Take, for example, this situation; A and B are the drivers of two motor-cars approaching each other from opposite directions on a straight and open road. They collide 'head-on', and C, an innocent bystander on the side of the road, is injured in the collision. Both A and B are driving at a furious speed and neither is keeping a proper look-out. Suppose that the facts are that neither A nor B, had he not been negligent, could have avoided the consequences of the other's negligence. If the sine qua non principle was applied to test the liability of A and B, both could escape, because each could plead that his own negligence was not a sine qua non of the accident because, even had he been diligent, the accident would still have happened as a result of the other's negligence. It would appear that it is in order to avoid this absurd result that the exception mentioned by McKERRON is introduced. This exception, however, is of little assistance in the instant case, as the facts do not fall within it...,. This is not a case where the accident would still have happened if one of the concurrent factors causing it was removed. With respect, however, to such an eminent writer on the law of delict as PROFESSOR McKERRON, I do not think that tests of causation in delict can be circumscribed by rules and exceptions to quite the extent which he appears to suggest. I would quote here what was said by CLERK and LINDSELL on Torts, 12^th Edn para 297:

'Test of causation. The courts have repeatedly disavowed scientific and philosophical tests by which to determine this most troublesome question. They prefer, instead, to approach the matter broadly on a common-sense basis, and it is, therefore, difficult to reduce the innumerable decisions to hard and fast principles. There is a frequent allusion in the judgments to the causa causans, the effective factor, as distinct from the causa sine qua non, the factor without which the damage could not have occurred, but these phrases give no indication as to how the distinction between them is to be drawn. It is profitless to seek a precise test; nothing could be more explicit than the judicial disavowal of any such thing. The most that can be said, perhaps, is that in any given case the judge, adopting a common-sense approach, will try to pick out the factor which, in his opinion, overshadows all others in importance. “The decision of the case,” said LORD WRIGHT, “must turn, not simply on causation, but on responsibility.” The very vagueness of such an idea as this imparts considerable flexibility to the whole concept of legal causation. Frequently it is just as plausible to select one out of a mass of contributory factors as another. When a court does pick out one as being the “responsible cause” this is the result, in some cases, of a common-sense balancing of the various factors involved, such as their relative blameworthiness, or, in other cases, of a policy decision.'

I would also refer to the case of Yorkshire Dale Steamship Company v Minister of War Transport (1942) A.C. 691. In that case, LORD WRIGHT (at p.706) is reported as saying:

'This choice of the real or efficient cause from out of the whole complex of the facts must be made by applying common-sense standards. Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician, would understand it. Cause here means what a business or seafaring man would take to be the cause without too microscopic analysis but on a broad view.'

It seems to me that this is the proper approach.

In the example I have given of the suicidal motor-drivers colliding head on with each other, I think it would be quite profitless to expect C, the injured bystander, to have to try to prove what might or might not have happened if one or other of A or B had not been negligent. The proper approach, surely, is the direct common-sense approach of the man in the street; and, in the example given, he would, without doubt, simply say: 'Of course, they are both to blame.' This is how I propose to approach the facts of this case.”...,.

On 10 September 2008 at around 7.30 pm the plaintiff was driving an E200 Kompressor Mercedes Benz 1998 model from Gweru to Harare. At the 49km 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 defendant during the course and scope of his employment with the second defendant. Both the trailer and the tractor belonged to the second defendant.

THE PLEADINGS

The plaintiff issued summons against both defendants on 25 February 2009. He sought US$30,000= being the replacement value of the Mercedes Benz together with interest at the rate of 30% from the date of the accident to the date of payment in full; damages for hiring a vehicle for his use at the rate of US$2,000= per month from the date of the accident to the date of payment;  general damages for pain and suffering in the sum of US$10,000= from the date of the accident to the date of payment together with interest at the rate of 30% and costs of suit.

In his declaration, the plaintiff averred that the accident was caused by the negligence of the first defendant and the unroadworthiness of both the tractor and the trailer. He particularized the negligence thus -

(a) The tractor driver was not licensed to drive.

(b) The trailer, which had thirty passengers, had no rear lights despite the fact that it was around 7.30 pm.

(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 defendant 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 defendants 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 plaintiff who drove at an excessive speed; failed to keep a proper look out and attempted to overtake the tractor and trailer when it was not safe for him to do so. While confessing that the trailer did not have rear lights they denied that this contributed to the accident by averring 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. They admitted that the first defendant was not licensed but denied that this was a contributory factor to the accident.

In his replication the plaintiff averred that he noticed the tractor drawn trailer when it was 10-15m in front of him because his head lamps were on low beam as he had just passed a vehicle traveling in the opposite direction and could not overtake as there was an oncoming vehicle. He further averred that the chevron reflectors were fixed above one and half metres from the ground instead of the statutory “not more than one meter and twenty centimeters.”

On 9 July 2009 the matter was referred to trial on the following issues:

1. Whether or not the accident was caused either as a result of the negligence of the first defendant or the condition of the tractor and trailer; or both;

2. Whether or not the accident was caused by the negligence of the plaintiff;

3. In the event that the plaintiff and the first defendant were both partially negligent, what are the degrees of negligence;

4. What is the quantum of plaintiff's damages?

THE TRIAL

The plaintiff gave evidence in person. The witnesses who testified on behalf of the defendants were the first defendant; Lovemore Ndodo, a driver with the second defendant and Anthony Kakorera, the Workshop Manager of the second defendant.

The plaintiff's case

The plaintiff stated that he met an on-coming vehicle just as he came out of the curve near Triple C Company. He reduced his speed from 100km/h to about 70 and 80 km/hr and dipped his headlamps. He was familiar with this stretch of the road. It was common cause that the road ahead ran straight for 800 metres. He had travelled on low beam for 300m, when some 13 metres in front of him a large trailer “like a ghost” loomed large in the middle of his lane of travel. He could not ascertain whether it was moving or stationary. He rammed his brakes and although he saw an oncoming vehicle he changed lanes hoping to drive between the trailer and the oncoming vehicle. He expected that the oncoming vehicle would move to its extreme left but it did not do so. To avert a head-on collision he consciously went underneath the rear right corner of the trailer. His vehicle stuck to the trailer and the two moved attached together for 19 metres before coming to a standstill in the middle of the road. The draw bar of the trailer left a 10 metre long gorge in its wake. It was common cause that the trailer was not licensed and did not have any rear lighting. The only safety feature on it was a reflective chevron pattern that was between 1,3 m and 1,5 m from the ground. It was also common cause that the road was 11,5 m wide; the tarmac beyond the yellow line was 1,6 m wide; the flat grass verge extended for 1,4 metres beyond the edge of the road and was bounded by the electric fence of a nearby farm. The airbags popped out and minimized the impact of the collision to his person. He managed to free himself. The trailer was sitting on top of the front passenger door. His nephew, who was seated in the front passenger seat, was trapped under the trailer and was screaming in agony. He, however, was rescued by about ten young men who were passengers in the trailer. The Mercedes Benz was detached from the trailer with the assistance of a passing motorist who pulled it off using his vehicle. The nephew was taken to Norton hospital with eight passengers from the trailer. The trailer passengers were discharged that night as they had sustained superficial injuries but his nephew, who had sustained life-threatening injuries, was transferred to the Avenues Clinic in Harare. The second defendant's manager came to the scene on a motor cycle. The driver of the tractor could not be found. On the instructions of the attending police detail, the manager switched the lights of the tractor on. The front lights were working as was one tail light. The other tail light was missing. He did not know whether it had been damaged during the accident or not. He was unsure whether the indicators of the tractor were flashing. He said even if they were, they emitted very soft light which was obliterated by the glare of the full beam of the oncoming vehicle. He further stated that he could not see the tail and flashing hazard indicator lights of the tractor from behind as his vision was blocked by the height of the trailer, its passengers and cargo. He stated that the accident was caused by the absence of lighting on the trailer to warn vehicles travelling behind it of its presence on the road and the failure by the driver of the tractor to keep to the extreme left of the road. He produced exhibit 2, the three admissions of guilty fines paid by the first defendant for drawing a trailer which did not have tail lights; for carrying passengers in the trailer drawn by a tractor on a public road and for not carrying a tractor driver's permit on his person.

He was cross examined.

He revealed that his lights and power brakes were in perfect condition. He provided the basis for his averment that he was travelling at between 70km/hr and 80km/h as being the fact that he managed to stop after pushing the trailer for 10m. He estimated that the two lanes could both accommodate four vehicles and not just two. He stated that the hazard indicator lights on the tractor were 1.5m above the ground and disputed that the height of the trailer was 1.4m. He insisted that it was the same height as the tractor. He denied that the chevron was1.7m long but did not dispute it was 19cm wide. He stated that he could not see the chevron pattern with a low beam. He stated that though the lights of the oncoming vehicle were on full beam he did not see the tractor and its trailer. He supplied three reasons for electing to drive in the face of the oncoming vehicle instead of moving to the extreme left of his lane. These were his fear of either landing in a ditch; or being electrocuted by the nearby electric fence; or crashing into a diagonally parked broken down truck. He maintained that when he suddenly saw the trailer he applied his full brakes and tried to squeeze between the trailer and the oncoming vehicle. He denied the presence of any vehicle on the road in front of him that overtook the tractor….,.

There were disquieting features in the plaintiff's version. He was driving a top of the range Mercedes Benz on a clear night. He was travelling on a straight stretch of the road. His testimony, and the submissions made by his legal practitioner…, demonstrated that he calculated his speed from the distance that his vehicle stopped after the collision. He calculated the speed of 70-80km/h from the gorge marks of 10 metres long and not the 19 metres left by his tyre marks. It was common cause that the tyre marks started from the point of impact. Applying his own method of calculation; he would have been travelling at double the speed he indicated. If his calculations were correct they would reflect that he was travelling at a speed which was twice than the one he deposed to. 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 and hit the trailer 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 and trailer 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. 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 violently 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. It was also negated by the absence of any evidence of violent braking on the tarmac before the impact.

The defendants' case

The first defendant had the authority of the second defendant to drive its tractor - though he was not a licensed driver or the holder of a written permit. He had been driving the tractor for three years. On the day in question, he was instructed by Anthony Kakorera, the second defendant's Workshop Manager, to drive about thirty farm employees from the farm to their homes in Norton. He was drawing a seven-metre long trailer which had a one and a half metre long draw bar. He satisfied himself that all the passengers were seated in the pan of the trailer before he left the farm. At about 7:30 pm he drove into the Harare-Bulawayo road and proceeded towards Norton at a speed of 25km/hr. He drove in the middle of his lane of travel. His trailer was not licensed. It did not have tail lights or any form of rear lighting. It had a large reflective 1.7 metres long and 19 centimetres wide reflex reflector with a chevron pattern affixed to its tail gate. The headlamps of the tractor were on. The tractor had park and indicator lights on the front section of each mudguard and tail and indicator lights on the back section of each mudguard. The park and tail lights were on. The indicator lights were all on hazard and were flashing. The flashing served to warn both oncoming and overtaking vehicles of the potential danger posed by the unlit trailer drawn by the tractor. He had travelled for 200m to 300m along the road when he was overtaken by two speeding vehicles. He observed that the indicators of the two overtaking vehicles were on as they raced past him. He saw an on-coming vehicle. As this vehicle was passing another vehicle traveling from behind him collided with his trailer. The drawbars of the tractor fell. The drawbar of the trailer was raised and it struck and broke the tail and indicator lights on the left mudguard of the tractor. The tractor swerved to the right and automatically engaged the neutral gear as a result of the impact. The tractor careened into the lane of oncoming traffic and halted on the grass verge with its lights on; still facing its original direction of travel. He disembarked from the tractor and sat on the ground in daze and shock. It was his testimony that the point of impact was on the right side of the trailer but at the back, close to the right wheel and axle. He maintained that the trailer was not hit from the rear….,. He believed that the plaintiff was racing with the other two vehicles that overtook him before the accident; tried to overtake the trailer but was forced to return to his lane by the proximity of the oncoming vehicle and in the process went under the trailer.

He did not change his story under cross examination.

He denied that the accident was caused by any of the illegalities that he committed that night. He denied that these illegalities constituted negligence. He maintained that there was nothing amiss about his manner of driving. He maintained that the trailer was lower than the tractor and averred that any motorist who was traveling behind him would have observed the neon light cast by the flashing hazard indicators of his moving tractor. He disputed that the trailer was wider than the tractor. He denied that the tractor careened for 81m but insisted it did so diagonally for 30m.

Anthony Kakorera, the second defendant's Workshop Manager, authorised the first defendant to drive the farm workers to Norton. The lorry which often did so had broken down and he was repairing it. He was not aware that Lovemore Ndodo was at the farm as he was off duty on that day. He accepted that the trailer was deficient in all the respects that were enumerated by the plaintiff. He arrived at the scene of accident on a motor cycle and found the attending police detail present. He found the tractor idling with its lights on. He switched off the engine and the lights.

He maintained his version during cross examination.

On a bitterly cold winter night of 18 July 2009, the plaintiff's semi luxury coach, a scania registration number AAZ7875, driven by Albert Bendura, which plies the Harare - Lusaka route, was on a routine return trip from Lusaka Zambia along the Harare/Chirundu Road and had just taken off from Karoi, when it was involved in a collision with an AVM omnibus registration number AAF5935 belonging to the second defendant which was being driven by the first defendant.

The plaintiff is a public carrier operating a passenger service between Harare and Lusaka, Zambia, while the second defendant is also a public carrier running a passenger service under the style Mutasa Bus Service between Harare and Hurungwe.

As a result of the collision, the two (2) motor vehicles sustained damage necessitating repairs.

It alleged, in its declaration, that the collision was caused solely by the negligence of the first defendant in that he failed to keep a proper look out, drove without due care and attention, failed to avoid an accident when it was imminent, drove at an excessive speed in the circumstances and drove a defective vehicle in that it had no headlights.

The first and second defendant contested the action.

In their joint plea, they denied any wrongdoing on the part of the first defendant stating that although he had paid an admission of guilt fine of US$20= at ZRP Karoi, he had done so “in a desperate bid to avoid protracted interrogations (sic) as would amount to harassment by the police officers involved.” They averred that the collision had, instead, been caused by the negligence of the plaintiff's driver who drove without due care and attention, failed to keep a proper look out, drove at an excessive speed in the circumstances and failed to avoid an accident when it was imminent.

At the pretrial conference of the parties held before a judge, the issues for trial were identified as;-

1. Whether the accident was caused by the second defendant's driver (the first defendant) or the plaintiff's driver.

2. The quantum of damages suffered.

The plaintiff led evidence from three (3) witnesses.

The first to take the witness stand was Bernard Musekiwa who, at the time of the accident, was employed by the plaintiff as a bus inspector. He testified that on the night of the accident the Scania bus, which is a semi-luxury coach with two (2) massive front windscreens and large side window panels, a typical modernized coach, was being driven by Albert Bendura. He was perched at a vantage point in the cabin seat next to the driver and therefore had a clear view of the road ahead. They were travelling from Lusaka in Zambia on a return trip to Harare where the bus is based and were carrying passengers. Bernard Musekiwa stated that upon arrival in Karoi, the crew decided to take a health recess before proceeding on the journey to Harare after 1900hrs. No sooner had they taken off from Karoi, in fact, the bus had only travelled just over a kilometre from Karoi and had not picked up speed cruising at approximately 60 to 70km per hour, than he beheld oncoming traffic which had only one headlight on the left side. He stated that although it was dark on a cold night the weather condition was such that one could see the road clearly. Bernard Musekiwa said he warned his driver to be on the lookout as the oncoming vehicle had only one headlight and no lighting whatsoever on the right side. This prompted the driver to move further to the left side of the road out of caution. In his observation, the driver of the oncoming vehicle must have had his vision impaired by the defective lighting of his vehicle because suddenly that vehicle bumped onto the plaintiff's bus on the driver's side. He estimated the speed of the oncoming vehicle, which turned out to be the AVM bus belonging to the second defendant, driven by the first defendant, at about 80km per hour since it was gaining speed on approaching Karoi on a slope. Bernard Musekiwa went on to say that the plaintiff's vehicle was hit on the driver's side shattering the windscreen and the AVM went on to side swipe it on the right causing damage to the right side window panels and body. He stated that because the second defendant's AVM was of the old fashioned carrier DAF type which is robust and strong it sustained negligible damage as a result of the collision. The witness observed that the collision was caused by the first defendant encroaching onto the right lane used by the plaintiff's vehicle. He denied that there was any contributory negligence on the part of the plaintiff's driver as he, instead, took evasive action by moving further to the left side of the road and still could not avoid the collision.

The two (2) defendants also gave evidence.

The first defendant, Trymore Muchingami, had been driving since 2003 when the accident occurred in July 2009. He stated that on the night in question he was carrying passengers coming from Harare. He insisted that his lights were in good working order as all the way he had been using them effectively, dipping them where necessary and without any difficulties. Immediately before the collision, he saw the lights of an oncoming vehicle from a distance of about 500m. He dipped his lights to facilitate easy passage. As he drew closer he observed that the vehicle was driving straight against him on his own lane. This vehicle, which turned out to be the plaintiff's bus, tried to negotiate its way back to its left lane to avert an accident and appeared as if it was going off the road on the left side. When the driver tried to come back to the road, he failed to do so and came and collided with the first defendant's bus. The first defendant maintained that the collision took place on his side of the road and was caused by the excessive speed and the swerving of the plaintiff's driver who even failed to stop after the collision. As he stood by the road, he could see a distance of about 1½km down the road but the plaintiff's bus had disappeared and was nowhere to be seen. The witness stated that it was only after a while that it made a U-turn and returned to the scene stopping briefly before proceeding to the police station in Karoi. The first defendant testified that when the police officers came Seargent Tarwirei Kamanura confronted him demanding to know why he was driving a bus without lights. He says his response was that the lights had not been defective at all but had become defective owing to the impact. When asked to demonstrate he had managed to flash the lights. It was only when put on dip that both lights were not working at all.

I…, find it unfathomable that the accident occurred in the manner described by the first defendant. From his version, even as he saw the plaintiff's vehicle from a distance of 500m as it was bearing down upon him, on his side of the road, he did not do anything whatsoever to avert the accident leaving everything to the plaintiff's driver. It is also bizarre to suggest that after a collision which completely shattered the drivers' side of the windscreen the plaintiff's driver disappeared down the road a distance for more than 1^1/2 km before returning to the scene and then proceeding to the police station to make a report.

The evidence of Walter Mutasa was legendary by its brevity. It is not clear why it was given. He confirmed that the first defendant was his driver. He was told about the accident by his wife as he does not normally reside in Harare. He did not say where he resides. After being told about it he did nothing until he received summons. He stated that his bus used to give him US$1,000= or more per day and he was not sure for how long it was off the road although he thinks it was over a month. That is all he said.

We know of course from the evidence of the first defendant that it was on the road much earlier and that he was driving it to Hurungwe exactly three (3) weeks after the accident when he was stopped at a roadblock.

Nothing is gained from this testimony.

I now turn to resolve the issues placed before me for trial in this matter. The first issue relates to the determination of which of the two (2) drivers caused the accident.

That question resolves itself by reference to the evidence I have already set out. I have accepted as credible, the evidence led on behalf of the plaintiff that the first defendant drove a motor vehicle which had defective lights, that it, it only had one light on the left while the right light was completely off, on a dark night. This detective lighting must have badly affected the first defendant's vision thereby forcing him to drive straight onto the plaintiff's bus which was lawfully being driven in the opposite direction on its side of the road. I have also accepted the evidence that the plaintiff's driver did everything humanly possible to avert the accident by moving to the left of the road. The same cannot be said of the first defendant who did absolutely nothing to avert the collision. This is a driver who does not even know if the plaintiff's driver dipped his lights when approaching him.

The credible evidence of the police officer, Seargent Tarwirei Kamanura, is to the effect that the first defendant encroached onto the lane of the oncoming vehicle belonging to the plaintiff resulting in a collision, the point of impact of which is squarely located on the lane used by the plaintiff's vehicle. He also observed debris strewn on that same lane.

The plaintiff issued summons against the defendant claiming damages totaling ZAR587,500= arising from a traffic accident in which he said the defendant's vehicle collided with and caused damage to his vehicle.

He said the accident was due to the negligence of the first defendant's driver who is the second defendant. The summons was served on the first defendant only. The second defendant could not be located. However, an appearance to defend was filed for both defendants by their legal practitioner. They requested particulars which were supplied. In his plea, the first defendant pleaded that the second defendant was on a frolic of his own at the time of the accident and denied liability and putting the plaintiff to proof thereof concerning the claim and other averments.

It is common cause that on 11 March 2011, at the 54 km peg, along the Mvurwi-Kanyemba Road, the defendant's vehicle, a Toyota Land Cruiser, registration number ABK 3379 (the Land Cruiser), hit at the back of the plaintiff's vehicle, an unregistered Toyota Camry (the Camry). This, according to the plaintiff's declaration, caused extensive damage to the Camry on the:-

“8.1. Left and right rear chassis, back floor left and right side rear fender, boot lid and hinges, left rear door, back screen, rear bumper and brukets, left and right side tail lamp, rear shocks, back panel, rear suspension.”

The plaintiff, through quotations obtained, estimates the cost of repairs to his vehicle to be US$5,600= and hence the claim in that amount.

The defendant disputes the claim mainly on the ground that the accident was due to the negligence of the plaintiff, an unlicensed driver, who he claims to have been driving the Camry on the day in question. The plaintiff, however, states that the vehicle was being driven by his uncle, one Solomon Zirima, a licensed driver.

The joint pre-trial conference minute filed by the parties on 25 September 2012 lists the issues for determination as:-

“2.1. Whether or not the plaintiff's motor vehicle was being driven by Solomon Zirima at the time of the accident. 

2.2. Whether or not the defendant negligently caused the accident? If so, how much is he liable to the plaintiff as accident damages?”

Apart from giving evidence on his own behalf, the plaintiff also called two other witnesses, namely, Solomon Zirima and Constable Givemore Chidembo….,.

The plaintiff said he had asked his uncle, Solomon Zirima, to drive the Camry from BeitBridge to Guruve where he stays with his mother. He also confirmed that he is not a licensed driver and hence the reason for him to call on Solomon Zirima to drive the Camry for him. He had recently bought the car and was due to register it. The plaintiff said as they were approaching Guruve they saw a Euneka vehicle flicking its hazards lights. It was stationary on the left side of the road. Solomon Zirima had, in turn, put on hazards of the Camry and slowed down. They were then suddenly hit from the back by the defendant's vehicle. This resulted in the damage to his Camry as detailed at page 1 of this judgment. The damage would cost him $5,600-00 in respect of repair costs….,.

The plaintiff denied that he is the one who was driving the Camry. He also denied that they had overtaken the defendant's vehicle and that there had been an on-coming vehicle on the right of the road. The plaintiff said he had gone to report the accident at Guruve police station and Constable Givemore Chidembo had attended at the scene of the accident. Constable Givemore Chidembo had then recorded statements from both Solomon Zirima and the defendant….,.

In his evidence, Solomon Zirima confirmed that he had been asked by the plaintiff to drive the Camry from BeitBridge to Guruve. He said this was so because the plaintiff did not have a driver's licence. He denied that the plaintiff had, at any point, between BeitBridge and Guruve, driven the Camry. Solomon Zirima's evidence was, to a large extent, also a confirmation of the plaintiff's evidence relating to how the accident occurred. He denied ever overtaking the defendant's vehicle and seeing an oncoming vehicle on the right of the road at the time of the accident. He also said there had never been any dispute as to the fact that he (Solomon Zirima) was driving the Camry.

The defendant was the only one who gave evidence for the defence case. His version was totally different from that given in support of the plaintiff's case. It was, in the main, different in the sense that:-

(a) He claimed to have identified the plaintiff's vehicle upon reaching Marlborough, Harare, when it overtook him at high speed;

(b) He had suspected that, as someone who was carrying valuables (i.e. engines), the plaintiff's vehicle was trailing him;

(c) Since his vehicle was higher than the plaintiff's vehicle he had managed to see that the plaintiff's vehicle had two passengers and the plaintiff was driving;

(d) When the accident occurred, the plaintiff had alighted from the driver's side of the Camry;.

(e) He did not know that the US$20= he paid was an admission of guilt fine;

(f) He had paid the said US$20= on 12 March 2011 and not 18 March 2011 (the date on the receipt);

(g) He had hit at the rear of the plaintiff's vehicle because the plaintiff's vehicle had overtaken him, and, in order to avoid an on-coming vehicle, the plaintiff had suddenly encroached on the left side of the road where he (the defendant) was driving and thus causing him to hit the plaintiff's car from the rear as he could not avoid the accident despite applying emergency brakes;

(h) The plaintiff had driven negligently and thus contributing to the accident; and

(i) He was not responsible for paying the damages since it was due to the negligence of the plaintiff, an unlicensed driver, that the accident had occurred.

I have…, listed the two issues for determination, namely, the identity of the driver of the Camry when the accident occurred and the determination of negligence on the part of the defendant, and damages payable.

Whereas I found the plaintiff and his witnesses credible and convincing, the same was not the case with the defendant. I, with respect, found that the man of cloth had difficulties telling the truth.

I did not believe the defendant's story that he had identified the Camry as he left Harare. He said he had seen many cars driving on the highway but had only managed to identify one – the Camry. He said he thought that, by the way the vehicle was being driven, it may have been carrying people who were after his valuables. He did not, however, tell the court what steps he had taken to avoid the bad people in the Camry. I did not find that story to be true. He was not on a mission to monitor the Camry on that highway. There were many other people on the highway who could have been alerted.

The defendant was driving a church vehicle and was, in my view, obliged to take full particulars of the people who were in the Camry for a report to his church. However, despite claiming to have seen the person who was driving the Camry, he allowed Constable Givemore Chidembo to record a statement from Solomon Zirima. He never protested at the scene. Apart from saying he informed his legal practitioner, he did not find it necessary to complain to the Member-in-Charge at Guruve Police Station, Inspector Mutizwa, whom he knew very well. He saw Constable Givemore Chidembo taking a statement from Solomon Zirima whom he claimed was not the driver.

It is inconceivable that a person of the defendant's standing would part with US$20= without knowing why he was giving such money away. Furthermore, he went on to tell the court that he parted with the money a day after the accident yet it was a week thereafter. That only shows that he was not telling the truth and was, in the main, an unreliable witness.

The unchallenged documentary evidence produced in court proves that payment of admission of guilt was made on 18 March 2011. I believe that the defendant paid the fine after being convinced by Inspector Mutizwa that he had been properly charged as the erring party in the accident. He had protested to the Member-in-Charge before paying the fine, which fine the papers show, was assessed by Seargent Kunaka. Upon payment, the defendant voluntarily signed the papers. I refuse to accept that he did not know what he was signing for. It was his own evidence that the receipt he signed was given to him immediately upon payment. He obviously saw the person who receipted the money and was therefore not truthful in alleging that he gave the money to Inspector Mutizwa and never knew what it was for….,.

The foregoing, in my view, shows that the plaintiff's story is credible. The plaintiff's version of events shows that: 

(a) There is no evidence to prove that the plaintiff was driving the Camry. The Camry was therefore being driven by Solomon Zirima;

(b) It was improbable that the defendant identified the Camry and its passengers as he was leaving Harare and the allegation of a speeding Camry cannot therefore be sustained;

(c) There is no evidence to prove that Solomon Zirima overtook the defendant's vehicle at the place of the accident and there was never any oncoming car from the right; and

(d) The defendant voluntarily paid an admission of guilty fine because he knew he had driven negligently and without due care and attention. There is documentary evidence to support the fact that he paid a fine for the charge voluntarily….,.

Even assuming I am wrong on the identity of the driver, I would agree with the plaintiff's submission that:-

“8. Even if for one, it is assumed that the plaintiff was the driver still that does not absolve the defendant's liability because the accident had nothing to do with whether or not the plaintiff's vehicle was being driven by a licensed driver. The court is referred to the case of Bernard Vengai v Benjamin Chuma and New Donnington Farm (Pvt) Ltd SC03-13 which was an appeal against the decision of this court dismissing the appellant's claim for the replacement value of a Mercedes Benz motor vehicle and damages arising from a road traffic accident….,.

The court held that 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 trailer and for that reason the appeal was dismissed. In this case, the defendant was bound to ram into the plaintiff's vehicle anyway, regardless of who was driving it.”

There is merit in the above submission…..,.

In view of the foregoing, and on a balance of probabilities, the plaintiff's claim has been proved. It is therefore ordered as follows:-

1. The defendant be and is hereby ordered to pay the plaintiff the sum of US$5,600= being repair costs for the plaintiff's vehicle; and

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.”

The plaintiff issued summons against the defendants, on 11 September 2012, claiming:

(a) Payment of the sum of US$3,700= being the cost of repairs to his Toyota sprinter motor vehicle registration number AAQ 5021 negligently damaged by the first defendant on 17 December 2011 who was at the time driving a Toyota Land Cruiser registration number AAX 3378 which vehicle, at the material time, was insured by the second defendant in terms of Part (IV) of the Road Traffic Act [Chapter 13:11].

(b) Payment of consequential damages in the sum of US$9,750= being the cost of hiring a replacement vehicle during the period 18 December 2011 to 30 June 2012 while the plaintiff's vehicle was being repaired.

(c) Interest on the sum of US$13,450= at the prescribed rate from the date of summons to date of final payment.

(d) Costs of suit.

In his declaration, the plaintiff averred that a road accident occurred along Alpes Road, between Cambridge and Borrowdale West Harare, on 17 December 2011, between his vehicle and that belonging to the first defendant. He averred, further, that the accident was caused solely by the first defendant's negligence, based on the fact that;

(i) She was driving at excessive speed.

(ii) She made a right turn in the face of oncoming traffic when it was dangerous to do so.

(iii) She failed to keep a proper lookout.

(iv) She drove too fast given the prevailing traffic conditions.

(v) She failed to apply brakes to her vehicle timeously or at all.

(vi) She was driving without due care and attention.

(vii) She failed to keep her vehicle under proper control.

The plaintiff alleged that the defendant paid an admission of guilt fine.

The plaintiff averred that as a result of the accident his motor vehicle sustained damage to the gear box, radiator, bonnet, headlamps and the windscreen. He averred, further, that the vehicle was repaired by H & J Panel Beaters, of Bluff Hill, Harare, at the second defendant's instance. When he took delivery of the vehicle, the plaintiff was not satisfied with the repairs done to his vehicle.

He then procured quotations for sums in excess of US$3,700= from different panel beaters, with a view to restoring his vehicle to the condition it had been in prior to the accident with the first defendant. He obtained a report from the Automobile Association of Zimbabwe (Private) Limited which confirmed that the repairs done to his motor vehicle were not satisfactory. The plaintiff alleged that the second defendant subsequently advised him to surrender his vehicle in return for an amount of US$3,500= which it claimed was the market value of the plaintiff's vehicle.

The plaintiff disputed this and insisted that the value of his vehicle was US$6,300=.

The plaintiff averred that he expected his loss to be mitigated by June 2012, and, because he was deprived of his car he rented a vehicle at US$50= per day from 18 December 2011 to 30 June 2012, when his vehicle was satisfactorily repaired.

The defendants filed their plea to the plaintiff's claim on 18 October 2012. The first defendant admitted to driving without due care and attention but denied any form of negligence....,.

The defendant admitted liability for the accident.

The plaintiff instituted proceedings against the defendants, jointly and severally, the one paying the other to be absolved for the following relief;

1. Payment of the sum of $3,700= being costs of repairs to the plaintiff's sprinter vehicle registration number AAQ 5021 which was damaged due to a collision solely caused by the first defendant. The other vehicle involved, which was being driven by the first defendant, a Toyota land cruiser registration number AAX 3378, was comprehensive-insured by the second defendant.

2. Payment of $9,750= being hiring costs incurred by the plaintiff during the period his vehicle was under repair.

3. Payment of interest on the sum total of $13,450= at the prescribed rate from date of summons to date of full payment.

The defendants, whilst accepting liability for causing the accident, deny liability for the amounts claimed above.

The first defendant pleaded that the vehicle involved was comprehensively insured by the second defendant. She did what was expected of her by referring the plaintiff to the second defendant. Her obligations ended there as she was not privy to what transpired between the plaintiff and the second defendant thereafter. She is at a loss why the plaintiff decided to join her in the proceedings.

The second defendant, on the other hand, pleaded that it attended to repairs which were caused by the accident involving the first defendant. The plaintiff's vehicle had been involved in any earlier accident which the second defendant is not liable for. Secondly, the plaintiff signed a release form which had the effect of releasing the defendants from any further suits or claims arising from the said accident. The defendants later offered the plaintiff, without admitting liability, the sum of $3,500= in exchange for the vehicle which offer was rejected by the plaintiff.

The defendants denied the plaintiff's vehicle was valued at $6,500= before the accident. The defendants also denied liability for $9,750= being costs allegedly incurred by the defendant through hiring a replacement vehicle. They put in issue the figure claimed.

At pre-trial conference the parties agreed that the issues which fell for determination are;

1. Whether or not the plaintiff is entitled to a further disbursement, the same claim having been settled. If so, in what amount?

2. Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum thereof.

The defendants admitted that the first defendant negligently caused the accident on the day in question....,.

The facts which are common cause are that the plaintiff's vehicle was involved in an accident with a vehicle driven by first defendant. The accident was solely caused by the first defendant's negligence. The first defendant has since paid an admission of guilt fine for driving without due care and attention.